Detained and Dismissed

Two Studies – on Women and Systemic Abuses – Document Shortcomings and Lack of Accountability

I.
Summary

In January 2008, women in the custody of US Immigration and
Customs Enforcement (ICE) in a county jail in Arizona wrote a letter. Addressed
to an immigration attorney and copied to Human Rights Watch, the letter
detailed conditions at the jail, including obstacles to medical care, and
summarized some of the responses the women received when they pressed for
needed care:

Medical care that is provided to us is very minimal and
general.... If you do not speak English, you cannot fuss, the only thing you
can do is go to bed & suffer.... We have no privacy when our health record
is being discussed.... When we’ve complained to the nurses, we get
ridiculed with replies like: “You should have made better choices ... ICE
is not here to make you feel comfortable ... our hands are [tied] ... Well, we
can’t do much you’re getting deported anyway ... learn English
before you cross the border ... Mi casa no es su casa.”.... Our living
situation is degrading and inhuman.[1]

These women are not alone. Most immigration detainees in the
United States are held as a result of administrative, rather than criminal,
infractions, but the medical treatment they receive can be worse than that of
convicted criminals in the US prison system. The inspector general’s
office at the Department of Homeland Security (DHS) has issued two reports in
the past three years criticizing medical treatment at immigration detention
facilities. Deaths in custody attributed to egregious failures of medical care
have received prominent media attention and a University of Arizona study in
January 2009 described failures of medical care for women detained at
facilities in that state.

Underlying the individual stories of abuse and mistreatment
is a system badly in need of repair, recent reforms notwithstanding. This
report, based on interviews with women detainees, immigration officials, and
visits to nine different facilities in three states, addresses one important
component of the needed change: the medical care available to women detainees.
As detailed below, we found that ICE policies unduly deprive women of basic
health services. And even services that are provided are often unconscionably
delayed or otherwise seriously substandard.

Abuses documented in this report range from delays in
medical treatment and testing in cases where symptoms indicate that women’s
lives and well-being could be at risk, to the shackling of pregnant women
during transport, to systematic failures in provision of routine care. As the
letter from the women immigration detainees in Arizona concluded, ICE
healthcare standards are “not in line with international standards to
ensure that detainee rights are protected.” We join in the women’s
appeal for change.

* * *

The number of individuals held in administrative detention
while their immigration cases are determined has skyrocketed in recent years.
The detained population on any given day is now over 29,000 nationwide, up
almost 50 percent from 2005. ICE holds the majority of them in state and county
jails contracted to provide bed space and other basic custodial services,
including medical care. As civil—not criminal—detainees, these
individuals have no right to be provided an attorney by the government while it
holds them for an uncertain period pending the outcome of their immigration
case.

Every one of these individuals has health care rights and
needs. Unfortunately, the system for providing health care to detained
immigrants is perilously flawed, putting the lives and well-being of more and
more people at risk each year. While the immigration detention system’s
flawed medical care affects both men and women, this report focuses on the
situation of women detainees, roughly 10 percent of the overall immigration
detainee population at any given time. These women include refugees fleeing
persecution, survivors of sexual assault, pregnant women, nursing mothers
separated from their children, patients detained amidst treatment for cancer,
and many more women who have needs for basic medical care.

Many women in the United States continue to struggle with
finding ways to access basic medical care. But for the thousands of women in
immigration detention, there is only one way to get a Pap smear to detect
cervical cancer, undergo a mammogram, receive pregnancy care, access care and
counseling after sexual violence, or simply obtain a sufficient supply of
sanitary pads: through ICE. In custody without other options, women receive
care through ICE or are forced to go without.

In interviews with detained and recently detained immigrant
women, Human Rights Watch documented dozens of instances where women’s
health concerns went unaddressed by facility medical staff, or were addressed
only after considerable delays.

We met women who were denied gynecological care or
obtained it only after many requests, including a woman who entered
detention shortly after receiving news of an abnormal Pap smear. She told
detention authorities that her doctor instructed her to get Pap smears
every six months, but after 16 months in detention and many requests, she
had still not gotten a Pap smear.

We met women who were refused hormonal contraceptives
during detention, including one who had inflamed ovaries and endured
excruciating, heavy periods when the detention facility refused to provide
her the birth control pills prescribed to manage her condition.

We met women who, according to standards of medical
practice in the United States, should have received mammograms, including
one woman who had breast cancer surgery before detention and was
instructed to get mammograms every six months. Due for her six-month
check-up when she was detained, she waited four months for her first
mammogram during detention, and did not receive another in her remaining
12 months there.

We met women who complained of inadequate care during
pregnancy, including one diagnosed with an ovarian cyst threatening her
five-month pregnancy shortly before she was detained. Her doctor said the
cyst should be monitored every two to three weeks, but during her stay in
detention of more than four weeks, she was never able to see a doctor. The
medical staff’s response to her last sick call request read,
“be patient.”

We met mothers who were nursing their babies prior to
detention and were then denied breast pumps in the facilities, resulting
in fever, pain, mastitis, and the inability to continue breastfeeding upon
release.

We met women who had to beg, plead, and in some cases work
within the facility just to get enough sanitary pads not to bleed through
their clothes, and one woman who sat on a toilet for hours when the
facility would not give her the pads she needed.

Certain themes arose again and again in our interviews and
demand attention. Detained women did not have accurate information about
available health services. Care and treatment were often delayed and sometimes
denied. Confidentiality of medical information was often breached. Women had
trouble directly accessing facility health clinics and persuading security
guards that they needed medical attention. Interpreters were not always
available during exams. Security guards were sometimes inside exam rooms,
invading privacy and encroaching on the patient-provider relationship. Some
women feared retaliation or negative consequences to their immigration cases if
they sought care. A few were not given the option to refuse medication or
received other inappropriate treatment. Full medical records were not available
when the detained women were transferred or released. Written complaints about
medical care through facility grievance procedures went ignored. The list goes
on.

Official ICE policy, which focuses on emergency care and
keeping the individuals in its custody in deportable condition, effectively
discourages the routine provision of some basic women’s health services.
ICE’s Division of Immigration Health Services (DIHS) has chief
responsibility for the medical care provided to detained immigrants, whether it
provides those services directly or through a contractor at a local facility.
The DIHS Medical Dental Detainee Covered Services Package, which governs access
to off-site specialists, says that requests for non-emergency care will be considered
if going without treatment in custody would “cause deterioration of the
detainee’s health or uncontrolled suffering affecting his/her deportation
status.” Although, on occasion, officials have offered generous
interpretations of this policy in its defense, the message about the scope of
care provided remains clear. “We are in the deportation business....
Obviously, our goal is to remove individuals ordered removed from our
country,” ICE spokesperson Kelly Nantel told a reporter in June 2008.
“We address their health care issues to make sure they are medically able
to travel and medically able to return to their country.”[2]

The Covered Services Package operates in tandem with
ICE’s national standards for its detention facilities, which include a
medical care standard that was revised in September 2008 (the new medical care
standard will not take full effect until 2010). While the new medical care
standard provides that “detainees will have access to a continuum of
health care services,” there is no detention standard specific to women
or their health needs. The new standard mentions women’s health care only
briefly, specifying merely that women will have access to prenatal and
postnatal care and that detained individuals will have access to “gender-appropriate
examinations.”

When the US government chooses to take thousands of
immigrants into its custody—which is itself a highly contentious and
costly course of action—it necessarily assumes responsibility for
providing adequate health care to those individuals. This may pose challenges,
but they are not insurmountable. Guidance on health care in custodial
situations, including care for women, is readily available from a range of US
and international sources, including the American Public Health
Association’s Standards for Health Services in Correctional
Institutions and the National Commission on Correctional Health
Care’s Standards for Health Services in Jails. As this report
details, ICE practice falls short of many of these standards.

The revised ICE medical standard contains important
improvements, but much more remains to be done to develop adequate policies,
ensure their proper implementation, and open up the detention system to
effective oversight.

As a start, the government should take immediate steps to
address the fundamental policy flaws that limit access to medical care for all
immigration detainees. We recommend:

To DIHS: Amend the Covered Services Package to remove
inappropriate consideration of an individual’s deportation prospects
in determining eligibility for medical procedures and harmonize the
package with the revised ICE medical standard so that detained individuals
can access a full continuum of health services, whether available inside
or outside the detention facility.

To ICE: Require all facilities holding individuals on
behalf of ICE to maintain accreditation with the National Commission on
Correctional Health Care.

To DHS: Convert the ICE detention standards, including the
ICE medical standard, into federal administrative regulations so that they
have the force of law and detained individuals and their advocates have
recourse to courts to redress shortfalls in health care.

To ICE: Implement the recommendations of the UN special
rapporteur on the human rights of migrants, including in particular the
recommendations that ICE develop gender-specific detention standards with
attention to the medical and mental health needs of women survivors of
violence and refrain from detaining women who are suffering the effects of
persecution or abuse, or who are pregnant or nursing infants.

To ICE: Incorporate into the ICE medical standard the
American Public Health Association’s standards on women’s
health care in correctional institutions and the recommendations of the
National Commission on Correctional Health Care’s policy statement
on women’s health care.

To ICE and DIHS: Establish a formal process for ICE
officers charged with case management to coordinate with health services
personnel to ensure that nursing mothers, pregnant women, and other women
with significant health concerns are immediately identified and considered
for parole.

Finally, to meet its obligations and make real improvements
in medical care for women in immigration detention, the government should aggressively
pursue better implementation and oversight of its policies, beginning with the
following steps:

To ICE and DIHS: Conduct intensive outreach to facilities
to ensure that both health professionals and security personnel are aware
that the men and women in their custody are entitled to the same level of
medical care as individuals who are not detained and assure health
professionals that ICE and DIHS policies are intended to support and not
inhibit their delivery of care consistent with standards of medical
practice in the United States.

To ICE: Improve the current system for receiving and
tracking complaints made by individuals in ICE custody. Ensure that all
individuals receive notice of complaint procedures in their native
languages and that they are informed of the availability of these
mechanisms for addressing medical care complaints.

To DHS: Require detention facilities to provide regular
reports to the DHS Office of the Inspector General detailing the number of
grievances received regarding medical care and their disposition at the
facility level.

II. Methodology

This report is based primarily on interviews conducted by
Human Rights Watch in the United States in 2008 with individuals possessing
direct knowledge of the medical care provided to women in immigration
detention. Our research included consultations with legal and health service
providers and immigration policy experts, and a review of relevant published
materials. The research also included interviews with 48 women detained by
Immigration and Customs Enforcement (ICE) (34 of whom were in detention when we
interviewed them and 14 who had been detained for some period of time since the
formation of ICE in 2003); 17 detention officials and health services
administrators; and two off-site specialists contracted to provide prenatal and
gynecological services to women in ICE custody.

In these interviews and visits to nine detention facilities,
Human Rights Watch investigated care for a range of women’s health
concerns and collected information regarding each type of facility where ICE
policies govern health care: service processing centers operated directly by
ICE, contract detention facilities managed by private companies, and state and county
jails contracted through intergovernmental service agreements. On October 30,
2008, we met with officials at ICE headquarters to share our preliminary
findings, clarify a number of medical care policies, and discuss ICE’s
plans for health services going forward.

Human Rights Watch informed ICE of our intent to carry out
this and two other research projects in February 2008 and entered into
discussions with ICE officials regarding the parameters of our access to detention
facilities.[3]
ICE asked Human Rights Watch to propose a schedule of facility visits that were
to include a tour and private interviews with detained individuals identified
by Human Rights Watch in advance of the visit. In selecting the facilities for
this research project, Human Rights Watch sought to identify states with a high
concentration of women in detention, examples of each of the types of facility referenced
above, and local legal service providers and other partners able to identify women
willing to talk about their detention experience. On the basis of these
criteria, we identified ten facilities in Florida, Texas, and Arizona.[4]
With the exception of one facility visit, ICE accommodated the requests for
visits to these facilities and arranged for them on the dates we specified.[5]
It should be noted that Human Rights Watch adopted this methodology to enhance
the breadth and depth of the research but we did not conduct a scientific
sampling and we do not contend that generalized conclusions about conditions at
ICE facilities nationwide can be drawn on the basis of our findings.

While the bulk of the interviews for this report were
conducted at detention centers between April 7 and May 2, 2008, in accordance
with the schedule of announced facility visits negotiated with ICE, Human
Rights Watch arranged further interviews with women released from detention,
community service providers, and local activists during the same period. In
addition, in June, July, and August 2008, we interviewed six formerly detained
women in the Washington, DC and New York metropolitan areas. Follow-up research
continued through February 2009 and included meeting with ICE and DIHS and
examining materials obtained through a request submitted to ICE under the Freedom
of Information Act.

Our main method for reaching women willing to speak with us,
whether currently or formerly detained, was through legal service providers, who
discussed our project with women they identified as possibly having information
relevant to our research. However, with more than 80 percent of individuals in
detention unrepresented, many women were simply beyond our reach. Also, fear
among women that speaking with us about detention conditions could adversely affect
their immigration status led some to decline an interview.

ICE had no input in identifying which women would be
interviewed for this research. However, an ambiguous limitation imposed by ICE regarding
the number of interviews and shifting requirements for documentation of the individuals’
consent to be interviewed proved obstructive. Shortly before the start of the
first trip, ICE introduced a limit of 12 on the number of individuals in
custody who could be interviewed, without indicating whether this limit applied
per facility, per day, per state, or per Human Rights Watch project. Despite
efforts to clarify this issue, the limit became a major impediment, as each ICE
field office varied in its application of the limit set by headquarters, and
none permitted us to interview more than 12 detained individuals per facility
for all three projects. Further, the field offices imposed different
requirements regarding the form in which the individuals, and sometimes their
lawyers, were to demonstrate their consent to the interviews. They also
required up to five business days notice for the list of interviewees, a
particularly impractical demand given the transience of the immigration
detention population.

As noted above, of the 48 women who spoke with Human Rights
Watch about their experience with medical care in immigration detention, 34
were in ICE custody at the time of their interview; the other 14, all of whom
had been detained for some period of time since the formation of ICE in 2003,
had been released from custody and were living in the US. The length of time
the women had spent in ICE custody varied considerably, from less than 24 hours
to over two-and-a-half years. The backgrounds of the women interviewed also
varied in terms of the length of time they had spent in the US, the manner in
which they had come to be in ICE custody, and their countries of origin,
although 29 of the 48 came from Latin America and the Caribbean. No one below
the age of 18 was interviewed for this report, and the majority of the women
were in their 20s or 30s.

Human Rights Watch conducted an individual interview with
each woman. With the exception of two, the interviews at detention centers took
place in a room in which only the woman, the Human Rights Watch interviewers,
and any interpreters were present. In two cases, the interviews were conducted
in a corner of a large room in which other detained women were present but out
of earshot. In a single instance, one woman we interviewed interpreted for
another woman in a subsequent interview with the second woman’s express
consent. Human Rights Watch met with women who had been released from detention
in a variety of locations selected for their comfort and privacy. In four
cases, family members of the women were present at the request of the interviewee
for all or a portion of the interview and in one case a woman’s lawyer
participated in the interview. The primary interviewers for this project were
women; however, due to logistical constraints, a male colleague pursuing a
separate line of research was present for several of the interviews.

The interviews ranged in length from 15 minutes to almost
four hours; most lasted approximately one hour. Interviews were conducted in
English or in Spanish, and, in one case, in French. They began with a
discussion of the purpose of the interview and an explanation that
participation was entirely voluntary and could be stopped at any time. Where
appropriate, Human Rights Watch attempted to provide contact information for
other organizations offering legal, counseling, or social services. No one
received or was promised any material compensation for their participation. To
protect their privacy and alleviate concerns regarding retaliation, Human
Rights Watch assured women that their real names and the potentially identifying
details of their interview would not appear in this report. For this reason,
the names of all women interviewed for this report have been replaced with
pseudonyms (in the form of names and initials which do not reflect real names)
and the exact date and precise location of the interviews have been withheld.

III. Background

The women whose accounts appear in this report are among a
growing number whose physical and mental health are at risk as a result of the
US government’s increasing reliance on detention as a means of
immigration law enforcement. Between December 2005 and May 2008, the number of
individuals in the custody of Immigration and Customs Enforcement on any given
day shot up almost 50 percent, from 19,562 to 29,340,[6]
giving ICE the distinction of overseeing the fastest growing form of
incarceration in the US.[7]
For the fiscal year that ended on September 31, 2007, ICE reported that it had held
more than 320,000 people in its custody for various lengths of time over the
course of that single year.[8]

As the number of people detained has increased, the number
of women detained has risen as well. In fact, the proportion of the detention
population made up by women increased from approximately 7 percent in 2001 to
10 percent in 2008.[9]
Detained for alleged violations of US immigration law, these women include
asylum seekers,[10]
undocumented immigrants,[11]
legal permanent residents convicted of certain crimes,[12]
refugees resettled by the US who did not apply for permanent residency,[13]
and even US citizens whose citizenship the government disputes.[14]

The dramatic increase in the detention of immigrants can be
traced back to several policy developments of the past 13 years. These include
the passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility
Act, which expanded mandatory detention during removal[15]
proceedings for individuals convicted of certain crimes;[16]
the events of September 11, 2001, and the subsequent emphasis on border
security and immigration law enforcement; the broader detention powers ushered
in by the USA PATRIOT Act;[17]
and an expansion in the use of expedited removal for undocumented individuals
apprehended at a port of entry or within a certain distance of the border.

The Immigration Detention
System

ICE detains individuals at over 500 facilities nationwide.[18]
The facilities fall into four categories: service processing centers operated
directly by ICE; contract detention facilities managed by private companies
such as the GEO Group and Corrections Corporation of America; state and county
jails that ICE has contracted with through intergovernmental service
agreements; and facilities run by the federal Bureau of Prisons. Eight of the
facilities used by ICE are service processing centers, 7 are contract detention
facilities, and more than 500 are state and county jails.[19]
This report does not address conditions at the few Bureau of Prisons facilities
used because they are separately regulated.

To be eligible to hold women, ICE facilities need only
establish that they can maintain physical and visual separation of the sexes.
Even though they constitute only 10 percent of the immigration detention
population, women are spread out over 300 plus facilities. However, 50 percent
of the women detained by ICE are held in ten facilities, half of which are
located in Texas.[20]
ICE holds 68 percent of the women in its custody in state and county jails, 25
percent in contract detention facilities, and just 7 percent in the service
processing centers run by ICE.[21]
State and county jails have greater latitude to stray from compliance with
certain provisions of the ICE detention standards.[22]
In addition, the remoteness of some of these facilities may be detrimental to
individuals’ access to counsel and family members.

While “enforcement” stands out as the preeminent
watchword of the current political discourse on immigration, detention is often
not a proportional, necessary, or cost-effective response to immigration violations,
most of which are administrative, not criminal, infractions.[23]Under US and international law, the
government’s infringement of fundamental rights, such as the right to
liberty,for punitive purposes must be
proportional to the acts punished.[24]
Although the US considers immigration detention to be administrative rather
than punitive, its effects—confinement, separation from family, loss of
livelihood, among others—may serve in fact to punish harshly those
detained, particularly those held for extended periods of time.Further, alternative methods for ensuring that
individuals appear for their immigration hearings and comply with the final
rulings in their cases have proven successful, with supervised release programs
reporting upwards of 90 percent of participants appearing for their hearings.[25]

Supervised release programs also offer an alternative to the
ballooning costs of detention. In 2008 ICE spent an average $119.28 per day for
each person it holds in a service processing center and can pay upwards of $100
per day to the state and county jails to which it entrusts the care of individuals
in its custody.[26]
In contrast, a study funded by the government from 1997 to 2000 showed that a
supervised release program can be both effective and cost efficient, costing an
estimated $12 per person per day as compared with $61, then the average daily
cost of detention per person.[27]

Medical Care in Detention

Chief responsibility for the medical care provided to
individuals in ICE custody resides with the Division of Immigration Health
Services (DIHS). Formerly a component of the Public Health Service within the
Department of Health and Human Services, DIHS was detailed indefinitely to ICE
in October 2007.[28]
DIHS retains a commissioned corps of health professionals, including
physicians, physician assistants, pharmacists, psychiatrists, and clinical social
workers. The division is headquartered in Washington, DC, where the national
office sets policy for the detention medical care system. However, of the more
than 500 facilities, DIHS personnel provide the on-site medical services at
only 21, eight of which are service processing centers run by ICE.[29]
Investigations conducted in 2007 revealed that staffing at even these 15
facilities poses a challenge, with a 36 percent vacancy rate for medical staff
at DIHS facilities nationwide.[30]
At other facilities, medical care is contracted out along with other detention
functions, and may actually be further subcontracted if the facility operator
has enlisted the services of a private healthcare company.

DIHS nonetheless regulates the medical care available at all
facilities through an ICE detention standard on medical care (ICE medical
standard) and the DIHS Medical Dental Detainee Covered Services Package
(Covered Services Package). Under this regime, individuals detained by ICE
should have access to the same level of care regardless of where they are held.
In state and county jails, for example, the individuals held on behalf of ICE
should have access to services necessary for meeting the ICE medical standard,
regardless of the services available to the criminal population at the jail.
Since the services available within individual facilities may vary, ensuring
uniform access to services requires providing coverage for services in the
community (i.e., outside the jail or other detention facility) where necessary.
The Covered Services Package, like an insurance company’s statement of
covered benefits, governs which services may be provided to individuals in
custody at the expense of ICE that are beyond “the contracted minimum
scope of services provided by a detention facility.”[31]
Pursuant to this arrangement, DIHS must pre-approve any medical care provided
outside of the facility, except for emergency services. Where the on-site
clinic is small, this may encompass almost all medical services. In order to
obtain this pre-approval, the facility’s medical providers must submit a
Treatment Authorization Request (TAR) to DIHS headquarters.

The TAR process is currently a major weakness in the system
that can result in major delays or denials of necessary health care. Both governmental
and nongovernmental bodies have criticized DIHS for tracking cost savings from
TAR denials and employing only three or four nurses to evaluate TAR submissions
from around the country.[32]
In a 2007 report, the Government Accountability Office (GAO) documented several
cases in which facilities encountered difficulties obtaining approval for
off-site treatment through this process.[33]
A recent Congressional Research Service report found that “between FY2005
and FY2007, expenditures on medical claims [services rendered by an off-site
healthcare provider] remained almost constant. During the same time, the funded
amount of bed space increased by 49%.”[34]

Healthcare Standards

As mentioned above, health care provided to individuals in
ICE custody must meet a national standard for medical care set by ICE. The ICE
medical standard is one of a numberof[laura1] standards developed by ICE
to govern the operation of the detention system (ICE detention standards).[35] In
2008 ICE revised the ICE medical standard as part of a process to update the
ICE detention standards and convert them into a “performance-based”
format. The new ICE medical standard was issued on September 12, 2008, with
limited revisions made on December 2, 2008, but will not be binding on facilities
until January 2010. Until then, the old ICE medical standard remains binding.
This report refers to the revised standard as “the new ICE medical
standard” and the old standard as “the currently binding ICE
medical standard.”[36]

Facility health clinics receive differing messages about the
scope of care they should provide or arrange for individuals in ICE custody.
The new ICE medical standard provides that “detainees will have access to
a continuum of health care services, including prevention, health education,
diagnosis and treatment.”[37]
This builds on the currently binding ICE medical standard, which states that
individuals in custody will have access to medical services that promote health
and general well-being.[38]
In marked contrast, however, the Covered Services Package, which regulates the
care that ICE will pay for outside the facility, emphasizes only emergency care
and treatment to prevent the deterioration of a health condition during the
period of custody.[39]
Given the restricted scope of services available on-site at some facilities,
the limitation on off-site care has meant that some individuals have not had
access to the continuum of services referenced in the new ICE medical standard.

The focus on emergency care is premised on the assumption
that an individual’s stay in detention will be brief, despite the fact
that individuals may and do spend months or even years in detention. A recent Congressional
Research Service report noted that, according to ICE statistics for fiscal year
2006, ICE held 7,000 people for over 6 months during that year.[40]
Asylum seekers, in particular, may spend an extended period of time in custody,[41]
and may also be a group with particular medical needs exacerbated by detention.[42]
Access to comprehensive health services is essential for all individuals in
custody, and particularly relevant for those detained over a long period.

ICE has no detention standard specific to women or their
health needs, and women’s health barely receives a mention in the currently
binding ICE medical standard, a mere instruction that officers in charge be
notified if any woman in custody is pregnant. The new ICE medical standard
shows improvements in its requirement of care for prenatal and postnatal women,
and its indication that “[d]etainees shall have access to age and
gender-appropriate examinations,”[43]
but without further detail these provisions provide limited assurance that
women can expect the care they need. As detailed below, the Covered Services
Package likewise reflects a narrow view of women’s health care,
restricting access to essential cancer screenings and basic components of care
such as hormonal contraception.

Monitoring and Enforcement of
the Standards

ICE has internal enforcement mechanisms for its detention
standards, but since the standards do not constitute formal federal
administrative regulations, they are not legally enforceable. Although the
standards require ICE officials to visit the facilities on a regular basis, ICE
evaluates most detention facilities’ compliance with the detention standards
with only a single official inspection each year. If the inspection shows the
facility is deficient in implementation of one of the standards, the facility
must devise a plan of action to remedy the deficiency. Should the facility fail
or refuse to fix the problem, ICE may impose penalties as outlined in its
contract with the facility or discontinue using the facility.[44]

ICE has undertaken new measures to improve accountability
through the use of private inspectors, hiring the Nakamoto Group in 2007 to
provide on-site quality control inspectors at the 40 facilities holding the
highest number of individuals in ICE custody. Also in 2007, ICE hired the
Creative Corrections Corporation to conduct the annual facility inspections.
These private companies report their findings directly to ICE, the agency
financing their work. ICE also created a new subsection within its Office of
Professional Responsibility, called the Detention Facilities Inspection Group,
to oversee the annual inspections process.

The quality of ICE inspections is disputed. In 2008, ICE
released its first semiannual report on detention standards compliance, which
indicates that 98 percent of the 176 facilities evaluated received a rating of
acceptable or above for compliance with the medical care standard.[45]
However, an audit conducted by the DHS Office of the Inspector General (OIG)
noted discrepancies between reviews of the same facility conducted by ICE and
by the Office of the Federal Detention Trustee (OFDT) of the Department of
Justice. Where ICE had rated the facility “acceptable,” an OFDT
review within six weeks deemed the facility “at risk,” which is the
lowest possible rating, two levels below “acceptable.”[46]
Further, the OIG audit found “staff conducting routine oversight of
facilities has not been effective in identifying certain serious problems at
facilities.”[47]

Since March 2003 at least 85 individuals have died in or
shortly after leaving ICE custody.[48]
ICE contentions that the death rate for individuals in its custody has declined
and compares favorably to that of the US prison population have been assailed
by critics for failing to adjust for the comparatively short, and shrinking,
period of time that the average person spends in immigration detention.[49]
The DHS Office of Civil Rights and Civil Liberties is responsible for
investigating deaths of individuals in ICE custody. The DHS Office of the
Inspector General (OIG) has recommended to ICE that it send the OIG reports of
all deaths in order to determine the appropriate review process.[50]
This recommendation resulted from the audit mentioned above.

ICE has severely limited its commitments with respect to
meeting standards set by professional accreditation bodies. Under the new and
currently binding ICE medical standards, state and county jails contracted by
ICE are not required to maintain any professional medical accreditation.
Service processing centers and contract detention facilities must currently be
accredited with the National Commission on Correctional Health Care (NCCHC); however
the new ICE medical standard does not include that requirement.[51]
The NCCHC is a body with representatives from the Academy of Correctional
Health Professionals, the American Psychiatric Association, the American Bar
Association, and other professional organizations from the fields of
corrections, health care, and law. Maintaining NCCHC accreditation requires an
on-site survey of the facility by NCCHC staff health professionals every three
years, including a review of medical policies and procedures, as well as
interviews with health staff, security personnel, and individuals detained at
the facility. The currently binding ICE medical care standard also states that
facilities will “strive” for accreditation with the Joint
Commission on the Accreditation of Health Care Organizations (JCAHO); however,
the new ICE medical standard lacks this provision.[52]

The House Judiciary Committee’s Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International Law held
multiple oversight hearings on ICE’s detention and removal operations in
2007 and 2008, including two addressing problems in the medical care system. At
those hearings, members of Congress heard testimony about instances of delayed
and denied care and their consequences from individuals formerly in ICE
custody, immigration attorneys, and medical experts. Several bills were
introduced in the 110th Congress that, if adopted, would
specifically address certain aspects of medical care for individuals detained
by ICE.[53]

Within the Department of Homeland Security itself, the
Office of Inspector General has conducted two audits in the last two years that
highlighted deficiencies in medical care. The first, published in December
2006, found instances of non-compliance with health care standards at four out
of five facilities surveyed. The one facility in full compliance, Krome Service
Processing Center in Miami, does not hold women.[54]
More recently, in June 2008, the OIG investigated the handling of deaths in ICE
custody and again found various instances of non-compliance with the medical
standard, while noting compliance with “important portions” of the
standard on deaths in the two individual cases reviewed.[55]
In addition, a 2007 study by the US Government Accountability Office noted
weaknesses in ICE’s internal monitoring processes.[56]

US immigration detention practices have drawn the attention
of the Inter-American Commission on Human Rights and United Nations (UN) human
rights experts. In October 2007, the Inter-American Commission held a hearing
on detention conditions and, in October 2008, began a fact-finding mission to
investigate the treatment of immigrants in detention centers.[57]
The UN Human Rights Committee encouraged the US “to adopt all measures
necessary for [the detention standards’] effective enforcement” in
its 2006 concluding observations to the US report on its compliance with the
International Covenant on Civil and Political Rights.[58] Further,
the UN special rapporteur on the human rights of migrants recommended that the
US develop gender-specific detention standards with attention to the medical
and mental health needs of women survivors of violence and refrain from
detaining women who are suffering the effects of persecution or abuse, or who
are pregnant or nursing infants. In addition, the rapporteur recommended that
mandatory detention be eliminated and that the government issue legally binding
standards governing the treatment of individuals in all types of immigration
detention facilities, finding the current non-binding standards insufficient.[59]

In a series of legal challenges, immigrants’ rights
advocates have called for accountability for the shortcomings of the detention
medical care system. In June 2007, the ACLU filed suit challenging the
constitutionality of delays and other serious shortcomings in critical health
services provided at a San Diego contract detention facility.[60] The
suit’s plaintiffs included three women, two of whom experienced problems
in requesting care for gynecological or breast health issues. Addressing the
lack of enforceable standards, Families for Freedom sued in federal court in
April 2008 to press its petition for rule-making which requested that the
Department of Homeland Security issue formal administrative regulations
governing the conditions for individuals in ICE custody.[61]
Both lawsuits are currently pending. April 2008 also saw the US government
admit liability for medical negligence in the death of Francisco Castaneda, who
died of cancer following months of being denied a biopsy in ICE custody.[62]

Reporting by nongovernmental organizations and the media has
brought forward more facts, adding to the picture of a medical system in
trouble. Human Rights Watch issued a report in December 2007 documenting the
failure of immigration authorities to care for the health needs of detained
individuals living with HIV/AIDS. Human Rights Watch found that ICE fails to
consistently deliver medication, conduct lab tests on time, prevent infections,
provide access to specialty care, and ensure the confidentiality of medical
care.[63]
In addition, public outrage followed a May 2008 investigative report on
immigration detention medical care by the Washington Post, which described
a dysfunctional system plagued by staffing shortages, bureaucratic hurdles to
providing care, and dangerous cost-cutting measures.[64]

By the beginning of 2008, reports from advocates working in
immigration detention were pointing to serious problems in the care provided to
women. Cheryl Little, executive director of the Florida Immigrant Advocacy
Center, testified before Congress in October 2007 that women often do not
receive regular obstetrical and gynecological care and cited incidents
including an ignored ectopic pregnancy, a uterine surgery inexplicably canceled
at the last minute, a miscarriage following pleas for help, and an effort by
detention personnel to prevent an asylum seeker who had survived rape from
obtaining an abortion.[65]
In a briefing paper compiled for the visit of the UN special rapporteur on the
human rights of migrants, the National Immigrant Justice Center drew on
advocates’ knowledge of such incidents and outlined several areas of
major concern for women in ICE custody: medical and mental health conditions
for victims of violence; medical conditions for pregnant and postnatal women;
sexual assault; family separation; and access to counsel.[66]

As research for this report was underway, the treatment of
pregnant women in ICE custody came under particular scrutiny. In early July
2008, The Tahoma Organizer published a letter alleging mistreatment of
pregnant women at the Northwest Detention Center including malnutrition,
inadequate bedding, insufficient medical care, shackling during transportation
for medical care, and lack of privacy during off-site medical examinations.[67] A
recent study by the University of Arizona’s Southwest Institute for
Research on Women noted medical care for pregnant women among numerous problem
areas documented at facilities in Arizona.[68]

With a growing body of documentation pointing to dangerous
flaws in the immigration detention medical care system, calls for reform of the
system have multiplied in number and strength. Immigration detention medical
care is now a live policy debate. As efforts around reform gather momentum,
women’s medical needs must be addressed. This report identifies existing
gaps in policy and practice and outlines an agenda for the way forward.

In our interviews with currently or recently detained women,
Human Rights Watch found that some issues arose repeatedly as impediments to
proper care: delays in getting requested medical attention, compromised
doctor-patient relationships, unnecessary use of restraints and strip searches,
interruptions in care, unwarranted denials of testing and treatment, and
ineffective complaint mechanisms. The following section outlines the
difficulties women faced at each stage of their attempts to obtain appropriate
care.

Delays & Denials of
Testing and Treatment

I was starting to go blind. I had complained for 15 days
about the blindness. I sent many sick calls. In June 2007 the officers called
medical. I could only see shades of people. I couldn’t see numbers or
letters. An officer asked me, “How come you are always sleeping?
You’re not like that.” They called to inform the doctors (the
doctors tell them whether to send us). The officer called and said I was
diabetic and needed to be seen. Then the nurse saw me. I told her, “I
can’t see. I’m blind. It has been 15 days.” They checked my
sugars. They were 549. The nurse asked, “Why didn’t you tell
us?” I was about to go into a diabetic coma or have a heart attack because
my blood sugar was so high.

—Mary T., Texas, April 2008

Half of the women Human Rights Watch interviewed said they
had experienced delays in receiving requested medical care and nearly as many
were forced to make repeated appeals to obtain an appropriate response to their
medical concerns. Official statements regarding the average response time for
sick call requests at individual facilities bore little resemblance to the
extended wait times women who spoke with us reported.[69]
The length of the delays ranged from a few days to dispense ibuprofen for a
headache to five-and-a-half months to follow up on an abnormal Pap smear. Some
requests remained unfilled at the time of the woman’s release, including
requests for prenatal care that never arrived in a woman’s month-and-a-half
stay in detention. Giselle M., who could not remember the number of times she
requested a sonogram to monitor a cyst that threatened her pregnancy, said the
delay could not be justified: “I know everything is a process but to me
there are some things they should be on top of.”[70]

Delays occurred at various points from the initial request
to the scheduling of specialist visits to the arrival of medication, and affected
treatment for problems of varying severity and complexity. Likewise, the delays
resulted in a range of consequences, some of which were not manifest until
after the period of detention. In several cases, the delays deterred use of the
medical system by people who needed it. After waiting 10 days for an
appointment to address burning urination and 15 days to see someone about a
growing rash on her face, Meron A. gave up on the sick call procedure: “If
I have a problem today, I need help today.... That makes me mad, I don’t
like to write, I’m not going to say anything.”[71]
Similarly, Raquel B. stopped trying to get the facility to dispense the
anti-anxiety medication she took outside of detention, even though taking the
substitute the facility provided caused her to tremble and prevented her from
sleeping. “I’m already tired of asking [to change the medication].
Many times I’ve requested sick call.”[72]

While less common than delays, outright denials of requested
care arose in circumstances of varying gravity, including in the case of a
woman with an incapacitating spinal injury that ICE diagnosed as requiring
surgery that it refused to provide.[73]
None of the health service providers we spoke with reported difficulty working
within the DIHS managed care system, which requires prior authorization for off-site,
non-emergency treatment. However, at least two women were told explicitly by
on-site providers that they believed they should receive a certain course of
treatment but were prevented from providing it by authorization denials from
the managed care unit at headquarters. “[The physician’s assistant]
said, ‘We can’t do anything for you. Requests for care are denied
by Washington.’ If it was up to him, ‘we would have approved it
right away.’ They especially don’t want to provide care if you are
awaiting deportation. They probably put my file aside. I can read between the
lines.”[74]

Many more women complained about receiving inappropriate or
inadequate care for their health concerns. These cases included a woman with
gallstones whose symptoms nurses diagnosed and treated as related to depression
until she collapsed,[75]as well as numerous women who were instructed
to drink water for an assortment of maladies, such as intense menstrual cramps.
“We call it the magic water,” said Elisa G.[76]

Obstacles to Obtaining
Medical Care

In order to bring their health concerns to the attention of
an appropriate medical provider, women described having to overcome numerous
obstacles, including lack of awareness of available services and the sometimes
obstructive role of security personnel and frontline medical staff.

Information

The ability to access information on health services is an
obvious prerequisite to obtaining the services themselves, but proves to be far
from a simple matter in the detention context. National Commission on
Correctional Health Care standards stipulate that information on the
availability of health services should be provided orally and in writing to
detained individuals on their arrival at a facility, with care taken to ensure
it is communicated in a form and language they understand.[77]
The new ICE medical standard and the standard on the admission and release of
individuals from detention describe an orientation process where the facility
should inform individuals about the available services, including medical care.[78]
As part of the orientation, a “detainee handbook” outlining
facility procedures should be provided to each individual who enters custody[79].
In addition, the Division of Immigration Health Services (DIHS) standard intake
form contains a check box for the intake examiner to indicate that the patient
has been informed how to request medical care. The women who spoke with Human
Rights Watch were by and large familiar with the general procedures for
requesting care, although a few had received the information from other
detained women and did not recall any official guidelines on how to seek care.

More commonly the information gap pertained to the nature
and scope of the services available. Giselle M. spent several weeks in
discomfort when she was detained during her pregnancy before one of the other
women in her unit told her that she should have received an extra mattress pad
for her bed, according to the facility’s standard practice. “You
don’t know your rights,” she told Human Rights Watch.[80]
This problem arose even more frequently in relation to services that were not
routinely provided. In discussing various health concerns, including abortion,
lactation, hormonal contraception, and services for survivors of recent sexual
assault, health providers frequently stated that an issue had not come up at
their facility, or that a procedure was not standard but could be made
available if requested. Women we spoke with who had been released from
detention, on the other hand, frequently said that they would have wanted the
services had they known they could be obtained in detention.

At Eloy Detention Center in Arizona, for example, Health
Services Administrator Lieutenant Commander Melissa George indicated that
Tylenol and massage would normally be recommended to nursing mothers but that a
breast pump also could be made available.[81]
However, Ashley J., who was detained at Eloy while nursing, told Human Rights
Watch that she was not told she could have access to a breast pump and so
assumed it was not available. Unable to express her breast milk manually,
Ashley experienced great pain when the ducts in her breast clogged. Speaking
about the pump and other services, Ashley J. explained, “Sometimes we
don’t ask. We don’t even know these things exist. You believe in
part—you almost feel like you are a criminal and the crime is to be
illegal.”[82]

This combination of ignorance of available services and
inhibition inspired by detention dynamics points to why the legal onus is on
the detention authorities to raise awareness and offer services to the
individuals in their custody. Certainly, some individuals will come into
detention with a ready knowledge of the services they are entitled to and will
not shy away from asking for them, but others—especially those who have
never experienced detention before and who may be traumatized or face linguistic
or cultural barriers—may not be equipped to do so. Further, relying on
the detention grapevine to inform women does not represent a satisfactory
substitute for proactive education by facility staff and, in fact, may undermine
efforts to provide care.

A key component to making individuals aware of services they
need is identifying their medical concerns. DIHS officials told Human Rights
Watch that their ability to respond to health concerns depends in large part on
what information is conveyed during an individual’s initial medical
screening and follow up appraisal. However, the new and currently binding ICE
medical standards state that non-medical detention staff can conduct the
initial medical and mental health screening.[83]
Even though staff members receive training to perform this function, they will
not be as well-equipped as certified medical professionals to identify and
respond to pressing health concerns.

Gatekeepers

Limitations on their movement and a series of intermediaries
between themselves and the appropriate health professionals may also impair
women’s access to care. In most facilities women do not have the freedom
of movement to present themselves at the facility medical unit when they feel
the need. Rather, health services are accessed in two ways, through submission
of a “sick call” slip or “kite” or by bringing the
situation to the attention of the security personnel in the housing unit.[84]
The health services personnel triage the sick call requests and nurses conduct
initial patient evaluations, provide appropriate treatment within their range
of expertise, and refer patients to a physician’s assistant or doctor
when they deem it necessary. Although one health services administrator
indicated that referral to a doctor becomes automatic after a patient has been
seen a certain number of times,[85]
some women told Human Rights Watch that they had difficulty reaching a doctor.[86]

In between sick calls, security personnel assume the
frontline in receiving the health concerns of the women in their custody. This
can prove problematic for two reasons. First, staff without advanced medical
training are put in the position of evaluating a patient’s need for care,
including in the event of an emergency. American Public Health Association
standards require that “prisoners who complain of or display acute or
emergency health problems must be referred to medical staff immediately.”[87]
One health services administrator insisted that officers have an obligation to
call if they are notified of an emergency because they are not qualified to
make medical decisions.[88]
This approach is reflected in the new and currently binding medical
standards’ instruction that employees who are unsure whether emergency
care is required should immediately notify medical personnel who can make the
determination.[89]
However, Rhonda U. told Human Rights Watch of her difficulties in appealing to
security personnel for access to care in urgent circumstances:

Only one officer will advocate for women for medical;
others will tell you to put in a request. When I say, “I’m sick,
please let someone with medical knowledge check on me,” the officer, Mrs.
[Name], says “Out there you wouldn’t get any better.” But I
say, “You have alternatives. Our back is against the wall. [In here] you
can’t do for yourself. Don’t make me feel this small. Like I just
want to get into a medical facility. Please help me because I can’t help
myself. That’s all I ask.”[90]

Indeed, determining the existence of an emergency may entail
a medical judgment in itself and according to one woman at an Arizona facility,
“there is no such thing as an emergency for them unless you are
bleeding.”[91]

Secondly, testimony provided to Human Rights Watch suggests
that the relationship of security personnel to the individuals in their custody
may seriously undermine access to health care. In the most benign instances,
some women said that they did not feel comfortable sharing private health
information with the individuals with whom they interacted day in and day out.
In other cases women alleged mistreatment by security staff in the course of requesting
medical care or being transported for treatment. This included guards placing a
woman on lockdown in response to repeated sick call requests during a
protracted struggle between her lawyers and ICE over her medical care, and, in
another case described below, guards saying that they could do whatever they
wanted to a woman who they knew to have been on suicide watch because no one
would believe her.[92]

Itzya N. described the way the guards’ knowledge of
her mental health issues allowed them to frighten her to the point that she
wanted to leave the facility to which she had been transported for better
medical care:

The guards know about medical problems.... Nothing is a
secret around here. In the past, I used to get very depressed and I thought
about it and here you are laughing at me and I’m just trying to go
forward. They [the guards] talk poorly about the women who are here. Instead of
taking care of you they pretty much screw you over verbally. I don’t want
to generalize but it happens with more than one. I do remember [one time] and
it was at [the service processing center]. It was a woman and four men. They
referred to me as the one who tried to kill herself. They said they could do
anything they wanted to me because no one was going to believe me because I had
done something stupid. I don’t want to remember the exact words they
said. All I know is that night I told the doctor I didn’t want to be
there for one more minute. All I remember is that that night I couldn’t
sleep fearing what would happen to me. If I close my eyes I can see their
faces. The first time it happened I lowered my head. But now every time I see
them I raise my head because I see them and I know what they did.[93]

Distortions in the Doctor-Patient
Relationship

The immigration detention healthcare system’s focus on
crisis management compromised the doctor-patient relationship in multiple ways
for women who spoke with Human Rights Watch. While some women spoke favorably
of the medical staff, a number felt that the staff did not take their
complaints seriously or lacked a genuine interest in helping them. Further, language
interpretation deficiencies prevented some women from participating fully in
their care, and we received four reports of health service providers insisting
on medication against the express wishes of the patient.

Providers’ Narrow
Approach to Care

While variation in the aptitude and zeal of individual
providers may be hard to avoid, the government bears responsibility for the
extent to which the detention system’s emphasis on stop-gap,
deportation-oriented care at the policy level has influenced the outlook of its
caregivers. The first rule of the Principles of Medical Ethics Relevant to the
Protection of Prisoners Against Torture, adopted by the UN General Assembly in 1982,
holds that “Health personnel, particularly physicians,
charged with the medical care of prisoners and detainees have a duty to provide
them with protection of their physical and mental health and treatment of
disease of the same quality and standard as is afforded to those who are not
imprisoned or detained.”[94]

However, some statements by health
services personnel to Human Rights Watch reflected the Covered Service
Package’s more narrow view of care. One service provider articulated the
medical unit’s mission as “to maintain health and keep [the
detained individuals] in a deportable state.”[95] This
view is consistent not only with the declared intent of the Covered Services
Package, but the package’s requirement that certain basic services, such
as Pap smears and annual dental examinations, only be provided to individuals
“with no indication of imminent removal.”[96]
Another health service provider noted that “most people are here
voluntarily because they are fighting their deportation case” when explaining
the limitations in available services.[97]
This assertion is only true in the barest technical sense since individuals
face a choice of enduring detention or giving up their claims for legal status
in the US, which would likely come at great personal cost and possibly great
personal peril for individuals fleeing persecution.

Women had high praise for certain medical providers and
strong criticism for others. Mercedes O. told Human Rights Watch how moved she
had been when a provider took a personal interest in her situation: “That
doctor was a good person and helped: I’m a Christian and she prayed with
me and said she was going to do everything to help me get out of [the detention
center].”[98]
But others felt that the providers were indifferent to their concerns, did not
take them seriously, or viewed their requests as bothersome.[99]
One health services administrator who spoke with Human Rights Watch gave little
cause to doubt these reports. Speaking about the prevalence of anxiety among
the women in custody, she said, “You know us girls, we just want to go
home, we want to look pretty,” and later commented, “I don’t
spend a whole lot of time down there with [the women in custody] because they
are difficult.”[100]

Some women recounted confronting a lack of compassion at a
moment of intense vulnerability. Alicia Y. had to be hospitalized for kidney
stones and an acute pancreatic infection that caused her to faint. At the
hospital, she remembered a nurse bruising her with a needle, leaving her to
bleed and letting the blood remain soaking through her sheets overnight. She
overheard a nurse who thought she did not understand English comment to a
colleague that, “She doesn’t have any options. She’s just a
detainee.”[101]
Beatriz R., whose physical and mental health had markedly deteriorated over the
period of her detention, recalled, “I was talking to the nurse about how
I feel and she interrupted, ‘You can’t be talking about your
problems, you’re just here for a check-up.’”[102]
Looking up from her hands in her lap as she recounted this incident, Beatriz R.
appeared both hurt and puzzled. “They treat us like we don’t have a
life out there, like we don’t have a family, like we didn’t exist
in the world.”[103]

Confidentiality & Privacy

Breaches of confidentiality in the handling of medical
information and intrusions into the privacy of the exam room concerned several
women who spoke with Human Rights Watch and led at least one woman to decline
to seek care. According to the currently binding ICE medical standard,
healthcare providers are expected to protect the confidentiality of medical
information to the degree possible “while permitting the exchange of
health information required to fulfill program responsibilities and to provide
for the well being of detainees.”[104]
The new ICE medical standard states that privacy of medical information will be
protected in accordance with “established guidelines and applicable
laws.”[105]
Three women reported that guards, some male and some female, commonly have
knowledge of the women’s health concerns, while two health services
administrators explained that although they did try to limit security
personnel’s exposure to individual medical information, the guards would
also be bound by medical privacy laws. Nonetheless, Maya Z. insisted, “They
talk about other patients. Everyone always knows why you went to the
doctor.”[106]
Women may find their confidential medical information exposed to other detained
women as well, including in the communication of pregnancy test results which
is not always done individually.

According to the new ICE medical standard, detention
facility medical units should have sufficient space to allow patients to be
seen in private while ensuring safety.[107]
However, on visits to off-site providers, security measures vary between
facilities and by the security classification of the woman detained. In some
cases these measures can include having a guard stationed inside the exam room.
This practice, as implemented in cases described to Human Rights Watch, is
inconsistent with standards issued by the National Commission on Correctional
Health Care which maintain that all clinical visits should be conducted in
private “without being observed or overheard.”[108]
The NCCHC recognizes exceptions for the presence of security personnel only
where a patient poses a probable safety risk to a health care provider or
others. In the instances described to Human Rights Watch, the women whose care
was observed had no history of violent behavior.

One woman confessed that she had multiple issues she had not
raised after hearing that another woman received a Pap smear in the presence of
a guard. “The doctors outside treated me okay but it was uncomfortable
for me because the guard has to be in the room. If I have to show where I have
pain, the guard has to see it too. The CO [corrections officer] was there when
they did the Pap smear on [other woman in custody]. I haven’t told them
[that I am due for a Pap smear] because I don’t want to go through what
she went through... I have breast implants, I didn’t tell them. By the
end of last year I was supposed to get them checked. I haven’t told them
about the breast implants because I don’t want the officers to see me
naked.”[109]

Language & Consent

Under the American Public Health Association’s
standards, “It is the institution’s responsibility to maintain
communication with the prisoners; therefore, personnel must be available to
communicate with prisoners with language barriers.”[110]
Each facility Human Rights Watch visited insisted that language differences did
not impede access to care, generally because the staff spoke multiple languages
and interpretation for less commonly encountered languages could be obtained by
phone. However, inconsistencies in the use of interpretation services compromised
care for several women Human Rights Watch interviewed. Meron A. said that she
informed the facility health providers that her English “was not
good” only to have them dismiss her concern, saying they understood her,
neglecting to consider that she in fact did not understand them.[111]
Medical records for Nana B., whose interview with Human Rights Watch required
French interpretation, indicate that facility personnel repeatedly conducted
her medical visits in English, perhaps contributing to the fact that the date
of birth in her records was off by 18 years.[112]
Suana Michel Q., hospitalized during her time in ICE custody, reported being
asked to sign consent forms for treatment without the opportunity to consult
with a translator.[113]

Informed consent arose as an issue on several different
occasions.[114]
The new and currently binding ICE medical standards state that “as a
rule, medical treatment shall not be administered against a detainee’s
will.”[115]
However, some women reported that they did not have the option to refuse
medication when the staff came through to distribute it at “pill
call.” Itzya N. recalled, “I started to stick the pills under my
tongue ... because I didn’t want to take the pills. But some nurses look
under your tongue.”[116]
Serafina D. reported that the facility would not permit her to stop taking
anti-seizure medication, even after tests confirmed her ailments were not
seizure-related: “They just kept giving it to me.... They said since I
was under their rules, if didn’t want to take it, I still have to take it....
Medicine would make me tired and drowsy. My body was feeling heavy, my eyes
were heavy. I felt drugged up.”[117]

Detrimental and Unnecessary
Use of Restraints and Strip Searches

ICE detention standards impose few definitive limits on the measures
available to security personnel to control the individuals in their custody,
with the result that women find their safety and their dignity subject to the
inclinations of those charged with their supervision. Women interviewed by
Human Rights Watch said this undermined their physical and psychological
health.

The failure to categorically prohibit the shackling of
pregnant women in ICE custody has drawn considerable criticism, as it is a
practice condemned by health professionals and international bodies.[118]
Under ICE policy, security staff may use restraints on pregnant women with the
consultation of a medical provider.[119]
Officials from the American College of Obstetricians and Gynecologists have
declared their disagreement with the practice of shackling pregnant women,
stating that “physical restraints have interfered with the ability of
physicians to safely practice medicine by reducing their ability to assess and
evaluate the physical condition of the mother and the fetus ... thus, overall
putting the lives of women and unborn children at risk.”[120]
In July 2008 a coalition of over one hundred women’s rights and
immigrants’ rights groups wrote to ICE to request that the agency’s
policy be changed to prohibit the routine restraint of pregnant women during
medical appointments, transport to appointments, labor, delivery, and
post-delivery.[121]
ICE declined to make any revisions to the existing policy, stating in a
response that it “properly balances the safety of the public, detainees
and ICE personnel.”[122]

Women who were pregnant while in ICE custody told Human
Rights Watch that they were not shackled during medical examinations, but that
the use of restraints was typical during transportation between detention
facilities and to and from off-site medical providers.[123]
Both the new and currently binding ICE detention standards on land
transportation indicate that as a rule women should not be restrained, but in
addressing the shackling of pregnant women ICE has stated that “[its]
policy is clear that any individual who has demonstrated violent behavior,
criminal activity, or a strong likelihood of escape shall be restrained during
transit.”[124]
Giselle M., who was shackled while en route from one detention center to
another, questioned the necessity of putting her pregnancy at risk: “What
if I had fallen? How fast is a pregnant girl going to run?”[125]
Recalling her experience with shackling, Katherine I. said, “When we went
to the clinic in [city name], we were in a van without a way to hold on. There
was a bench around and no way I could get myself so I couldn’t fall; I
was pregnant and she was driving too fast. And I told the security who took us
and they said they couldn’t do nothing about it.”[126]

Women who were shackled in the course of requesting medical
care, whether pregnant or seeking care for other concerns, reported that the
restraints took a psychological toll and presented a disincentive to seek care.
Itzya N. said, “They only use shackles in transportation, but that is a
trauma that lasts for three days. It’s just that on top of being chained
you are being treated like an animal. It is more about the way they treat you,
how they yell at you, how it’s like being caged.”[127]

Human Rights Watch spoke with women detained at facilities
that also held criminal populations who were subjected to the facilities’
standard strip search procedures. The searches, which were imposed without
apparent cause, constituted debilitating affronts to their dignity. Nora S.
shook her head and closed her eyes as she recalled, “When the women from
California first arrived, we were asked to strip down naked and walk around in
circles in front of the women guards... I didn’t file a request for two
whole weeks. All I could do was cry. I was in shock.”[128]
Jameela E. was required to strip at each of the four county jails she was
transferred between in Virginia. She described herself as devastated at the
immodesty of being unable to wear her hijab, to say nothing of the requirement
that she disrobe for inspection on multiple occasions.[129]

Discontinuity of Care

Women and healthcare providers alike identified lack of continuity
of care as one of the greatest obstacles in the detention medical system.[130]
Given the number of transfers between facilities and the short time that some individuals
spend in the detention system, disruptions in care are an expected part of the
detention system, as currently operated. Human Rights Watch interviews indicate
that DIHS is failing to take sufficient steps to address this reality.

Records

Having a complete medical history available and transferring
it with the patient can help considerably in bridging the gaps in care between
a facility in the community and one in the detention system, as well between
different facilities within the detention system. Yet exchanging comprehensive
records does not register as a priority in ICE policy. Although not required by
the ICE detention standards, some health service providers who spoke with Human
Rights Watch said that they would try to get a patient’s prior medical
records from a community provider where necessary and feasible.[131]
But several women reported that they had to resort to getting those records on
their own in order to substantiate their healthcare needs.[132]
Receiving no help from the facility to obtain her records, Lily F. tried
repeatedly to reach the doctor in California who had originally put in her
breast implants, which ruptured while she was in prison and remained deflated
in her chest when she reached ICE custody. But Lily F. found the doctor had
moved offices. She tried to follow up but had no money for phone calls and, not
being literate, could not write letters. To get more money for the calls she
worked in the detention center for the nominal wage (one or two dollars) the
facility provided: “I worked for five-and-a-half months but I had to quit
because I was not feeling good.”[133]

Individuals transferred from one ICE detention facility to
another can encounter the same difficulties and experience disruptions in care,
even though they remain in the custody and care of the same authority. American
Public Health Association standards stipulate that a full medical record should
accompany an individual transferred within the same correctional system, and a
summary should only be used for transfers into another system.[134]
Under ICE policy, a summary is used whenever ICE transfers someone to a
facility where DIHS does not directly provide care.[135]
The new non-DIHS facility does not receive the full medical record as a matter
of course. This is problematic because, unlike transfers between correctional
systems, transfers between DIHS and non-DIHS facilities happen frequently
within the ICE system. ICE moved Antoinette L., who had a complicated medical
history, from one facility to another located just across the street and still
provided only an incomplete transfer sheet that did not include her list of
medications, an omission that could further compound difficulties that can
arise due to DIHS and non-DIHS facilities maintaining different formularies.[136]

For Jameela E., whom ICE shuttled between four county jails
in Virginia, the impact of the policy on transferring records was palpable.
“I had pain over half my body,” she said in describing what it was
like to contend with an ovarian cyst without her pre-detention painkillers.[137]
At the first detention center, the health authorities referred her to a
specialist at a local hospital where it was determined that the cyst required
surgery. Before the scheduled surgical appointment two weeks later, ICE
transferred her to another jail. Not having received any records from the first
facility, the health provider demanded, “Do you have any proof you have a
cyst?” Jameela E. had records from prior to detention with her
belongings: “I said I have it in my property but they won’t let me
have it.... Finally I got it.”[138]
But the jail kept saying it had to wait for records from the first facility,
and before long ICE transferred Jameela E. again. She did not receive surgery
for her cyst during her time in ICE custody.

The new and currently binding ICE medical standards do not
provide for individuals to automatically receive their full medical record on
release, but they are entitled to request it from the detention center.[139]
Nonetheless, detained women and their lawyers report problems accessing medical
records, with requests going unanswered or yielding only partial files. Serafina
D. reported that the off-site specialists she saw refused to give her paper
records because they said the tests had been ordered by ICE.[140]
Despite provisions in federal law and the detention standards intended to
ensure individuals’ access to their records, lawyers report that
facilities often impose obstructive requirements.[141]
Kelleen Corrigan of the Florida Immigrant Advocacy Center told Human Rights
Watch that one facility she deals with regularly accepts record requests only
from lawyers, effectively prohibiting unrepresented individuals from accessing
their own medical information.[142]

Referrals and Discharge
Planning

The Division of Immigration Health Service prides itself on
its tuberculosis program, which includes not only screening and treatment at
the detention facilities, but referral for continued treatment after detention,
even in those cases in which the individual is being deported. Health services
administrators told Human Rights Watch that they will provide individuals with
a supply of medication and a referral to their nearest available clinic to
receive follow up care. Although this level of continuity of care may be
impracticable for all health concerns, the success with tuberculosis has shown
that it is possible to provide useful medical advice and assistance to
individuals leaving detention. Indeed, in standards issued by the American
Public Health Association, it is expected that “correctional health care
providers should work with government and non-government health care agencies
to develop referral criteria and programs to ensure continuity of care for
discharged prisoners with significant health care needs including medications
and supportive care.”[143]

The issue of continuity of care arose most frequently in our
research in relation to pregnancy, in part because women are likely to be released
from detention through parole or another mechanism the further they progress
into the pregnancy. Two officials Human Rights Watch spoke with described their
commitment to identifying quality programs in the community to provide
alternatives to detention for pregnant women: “Just because she’s
out of detention doesn’t mean she is out of our responsibility.”[144]
At another facility, however, Human Rights Watch asked whether the detention
center would assist pregnant women who were about to be released with
identifying appropriate health care providers in the community, and was told
that those arrangements would be up to the women themselves.[145]

Lack of Effective Remedies

I filled out a grievance a long time ago and
didn’t get a response so I didn’t bother to grieve any more. The
officers told me to put in a grievance because I was feeling bad. This was
around September of 2007. I didn’t get a response until this January
[2008]. They said it had gotten mixed in with a bunch of papers and they just
found it. I don’t think so. I put a grievance against the medical
treatment and they said, “Are you better now?” I told them,
“You took so long to answer I could have been dead by now.”

—Mary T., Texas, April 2008

In the past year ICE has instituted a number of new
oversight measures to assess facility compliance with detention standards;
however, few include effective mechanisms for seeking feedback from or
providing redress to detained individuals. The main mechanism for individuals
in custody to register complaints about their care remains the local facility
grievance systems, which to date have had limited input into ICE oversight
programs.

Standard setting bodies such as the National Commission on
Correctional Health Care state that a grievance process must be available to
address complaints about health services.[146]
Currently binding ICE detention standards require detention facilities to
institute a grievance system whereby the individuals detained can file
complaints that are reviewed and may be appealed up the chain of command to the
officer-in-charge of the facility.[147]
In addition, facilities must post the telephone number for the Office of the
Inspector General’s (OIG) toll-free hotline where individuals can bypass
the facility grievance process and report violations of their civil rights
directly to the national-level authorities.[148]
The new ICE standard on grievances, which will become binding on facilities in
2010, includes a separate process for addressing medical grievances in which
ICE must be notified of appeals of medical grievances.[149]
Also, ICE informed Human Rights Watch that it has begun screening
correspondence to its field offices to identify communications raising pressing
medical issues.[150]

These policy changes are positive signs, but their
implementation will be essential to realizing actual progress. In interviews
about the operation of the current grievance system, women indicated to Human
Rights Watch that it was at the facility level of implementation that the
process often failed them. Women interviewed for this report rarely found the
available complaint mechanisms to be effective tools for obtaining redress. Even
though information on the grievance system should be provided in an
individual’s orientation upon arrival at the detention facility, some
women never heard about the grievance system or seemed unclear on the
availability of the grievance system for medical issues.[151]
“When the doctor says no, it’s no. I don’t know about
grievance,”[152]
said Teresa W. Others said using the grievance system carried a risk of
retaliation. “When you become such an advocate, you become a target. To
them I’m threatening their job,”[153]said Nadine
I. Serafina D., who said she did not shy away from advocating for herself or
others, admitted, “One time I was going to file a complaint [about a
non-medical issue] but then I was told if I file a complaint that they would do
something to me and I never filed it.”[154]
Facility procedures for the submission of complaints in some facilities
amplified those fears. In one county jail, to file a grievance women needed to
ask the guards for the form and return it directly to them after completing it.[155]
Even the option of calling the OIG hotline was not perceived by women as being
without risk, as women feared their calls would be monitored and their
anonymity would be compromised.

For many of the women who spoke with Human Rights Watch,
behind the decision to opt out of the grievance system or drop a complaint lay
not fear but exhaustion and resignation. Having attempted to engage the system
without success in other forms—filing sick call requests, asking guards
for help, mentioning their concerns to deportation officers—women looked
dimly upon the prospect of satisfaction through yet another bureaucratic
process.

The women who did pursue the grievance process or another
complaint mechanism reported mixed results. One woman reported that she
convinced the facility to purchase new shower curtains for the women’s
unit,[156]
while another noticed a change for the better in the demeanor of a nurse after
filing a complaint about her behavior toward patients.[157]
Fewer appreciable results followed complaints about courses of treatment or the
availability of particular medical services. One woman tried to call the Texas
Health Department because a notice posted at the facility said that the
Department accepted complaints, but could not get her call to connect.[158]
Women who had the support of lawyers and family members who filed supporting
letters and made follow up phone calls had more success, but it was inconsistent
and delayed. Even with the backing of a team of zealous lawyers and attentive
family members, Rose V. faced intimidation in pursuing her complaints regarding
medical care. After advocacy efforts on her behalf graduated into a
full-fledged campaign, Rose V. said that a senior official from the medical
staff visited her and warned her, “I’m going to tell you right now,
if your lawyers don’t stop it’s going to hurt your case. It’s
going to make your judge mad; it’s going to make ICE mad... Call your
lawyer.”[159]

V. Findings: Specific Women’s Health Concerns

Human Rights Watch interviewed women about their ability to
access medical care for the full range of their health concerns while in
detention. To gauge the system’s preparedness in policy and in practice
to address the particular needs of women, the interviews included in-depth
discussions of women-specific health concerns. This chapter presents our
findings on those issues, as well as findings on care for survivors of violence
and on mental health care, both of which emerged in our research as priority
issues for women in detention.

Routine Gynecological Care

As a group for whom routine, but consequential and
potentially painful reproductive healthcare issues arise frequently, women
stand to suffer considerably within a medical system that emphasizes emergency
care and treating conditions that “would cause deterioration of the
detainee’s health or uncontrolled suffering affecting his/her deportation
status.”[160]
Although individual providers may conceive of their role more broadly, policies
set at the national level establish a framework that is startlingly inadequate
in addressing common gynecological concerns. The Covered Services Package warns
providers that non-emergency gynecological services are usually not a covered
benefit, though requests may be approved on a case by case basis, effectively
limiting care to whatever minor interventions may be available at the facility
clinic or, if the woman is lucky, through Division of Immigration Health
Services (DIHS) approval of outside care.[161]
This overall approach, as well as specific restrictions on Pap smears, hormonal
contraception, and access to specialist care, undermined the health of a number
of women who spoke with Human Rights Watch.

Pap Smears

Cervical cancer represents the second leading cause of
cancer deaths among women worldwide.[162]
However, the Pap smear, a simple and inexpensive screening test, is capable of
detecting 90 percent of early cellular changes in the cervix that signal an
increased risk of cancer, allowing for life-saving interventions.[163]
Accordingly, Pap smears have become a mainstay of routine preventive health
care for women in the US. The American College of Obstetricians and
Gynecologists and the American Cancer Society recommend that beginning within
three years of sexual activity or after the age of 21, women receive a Pap
smear annually until they reach the age of 30. After age 30, women who have had
three negative Pap smears can be screened every two to three years. Women who
have reached the age of 65 with no abnormal results in the last 10 years may be
safe to discontinue screenings.[164]
As Dr. Homer Venters testified before Congress during a hearing on problems
with medical care in immigration detention, Pap smears represent one of “the
most beneficial and cost-effective measures of modern medicine.”[165]

Women in ICE custody cannot count on accessing this
essential screening with the frequency recommended above. According to ICE
Policy, women must generally spend a year in ICE custody before becoming
eligible for a Pap smear screening.[166]
Pap smears may be considered before that time if “medically indicated”[167]
or if a specific problem is brought to the attention of the medical providers.[168]
On its face, this policy does not correspond to the community standard because
it does not account for when a woman may have last had a screening before
entering detention. Several women told Human Rights Watch that they had plans
for an annual exam right around the time they were detained, while others had
not had the opportunity for a screening in years. Standard setting bodies for
correctional institutions such as the National Commission on Correctional Health
Care and the American Public Health Association avoid this problem by
recommending that Pap smears form part of jails’ initial health screening
for women, to then be followed up with periodic screening according to community
standards.[169]

Interviews conducted by Human Rights Watch confirm that
women are indeed being denied this critical screening. Of eight women
interviewed who had been detained for more than a year, six women had not
received a Pap smear,[170]
one had been screened once in two years of detention,[171]
and another had received the test when she was receiving attention for other
medical concerns.[172]
In some cases the women actively pursued the screening; in others they were
unaware of their potential eligibility because medical personnel had not
mentioned it.

Cecile A., detained for 18 months at the time she spoke with
Human Rights Watch, said she had stopped trying to get the test after multiple
attempts: “In Texas I asked. I submitted a request and they said yes but
they never called. In Texas I asked many times but here [at a Florida detention
center] I don’t think they do it.”[173]
Cecile A. and the other five women we spoke with whom ICE detained for over a
year without a Pap smear were in detention at the time we interviewed them,
making it impossible to assess the impact of the missed screenings on their
physical health. However, the understandable impact of this uncertainty on
their mental health was readily apparent. Expressing distress over the number
of Pap smears and other cancer screenings she had not received over the course
of two years in detention, Nana B. said, “I think because I have been
here a long time they need to do all the tests ... I don’t know if
I’m sick or not. I’m scared.”[174]

Improvements in the eligibility criteria for Pap smears at
the national policy level likely constitute only the first step toward ensuring
access to screenings at the facility level. If the experience of Lucia C., who
met all of the current requirements for Pap smears, provides any indication,
implementation poses its own challenges. Prior to her detention by ICE, Lucia
C. had obtained a Pap smear and learned that the result was abnormal. Her
doctor instructed her that she should follow up with Pap smears every six
months to check for signs that cervical cancer was developing. When ICE
detained her at a county jail in New Jersey, Lucia brought her situation to the
attention of medical authorities. Initially rebuffed, she persisted: “I
was supposed to be checked every six months. I asked my daughter to send the
records. I got it and I brought it to medical so they could see I’m not
lying. I have asked a lot of times.”[175]
Speaking with Human Rights Watch after almost 16 months in detention, Lucia C.
reported that the medical staff still had not provided her a Pap smear.
“It’s terrible,” she said, “because you feel like you
have something you can die for... and you don’t have no
assistance.”[176]

Hormonal Contraception and
Gynecology Appointments

DIHS policy denies women in ICE custody access to basic
family planning services including contraceptive drugs, interfering with their
reproductive autonomy, and exposing them to the risk of unintended pregnancy
and unnecessary hardship. Furthermore, several women reported struggling to
obtain appropriate attention for menstrual irregularities and other
gynecological concerns through the detention medical care system.

Out of step with American Public Health Association
correctional standards mandating access to contraception, the Covered Services
Package specifically disclaims coverage for family planning services of any
kind and the DIHS formulary omits hormonal contraceptives.[177]
DIHS officials told Human Rights Watch that hormonal contraceptives for birth
control were not available because they constitute an elective therapy that is
not without risks.[178]
In addition to blocking access to birth control, Human Rights Watch found that
this policy can also impede women from obtaining access to hormonal
contraceptives as treatment for other health conditions, including painful or
irregular menstruation.

Despite the limitations that a sex-segregated detention
setting might seem to imply, the lack of access to contraceptives can put women
at risk for unintended pregnancy. Instances of sexual contact between men and
women in detention centers, while rightly forbidden given the impossibility of
meaningful consent in such an environment, have occurred and women should not
be required to report sexual abuse in order to obtain needed services.[179]
Further, women’s time in detention must be viewed in the context of their
larger reproductive lives. On release from detention, women who had been forced
to discontinue their use of hormonal contraceptives would not immediately be
able to rely on that method due to the time it takes for hormonal
contraceptives to become effective.[180]
It is notable that the Federal Bureau of Prisons, which cares for women who
will generally be out of the community for longer periods, provides women with
advice and consultation about methods of birth control and will prescribe it
when deemed medically appropriate.[181]

In addition, hormonal contraceptives serve a number of
important purposes beyond birth control. Among their many uses, hormonal
contraceptives may be prescribed to reduce a woman’s risk of developing
ovarian and breast cancer, to regulate a woman’s menstrual cycle, or to
alleviate painful menstrual cramps.[182]
Three of the health services administrators who spoke with Human Rights Watch
indicated that the exclusion of family planning services from the Covered
Services Package and DIHS formulary would not prevent hormonal contraception
from being prescribed for a medical issue aside from birth control.[183]
However, for Serafina D., that was exactly the effect it had:

I was having ovarian problems where I was bleeding very
heavily and [my medical providers before I was detained] told me that I had
inflammation of ovaries and because the bleeding was so heavy they prescribed
birth control ... Birth control would make it soft and light. When it was heavy
it was very uncomfortable. Cramping, heavy, like I was hemorrhaging ... [In
detention] they couldn’t give me the medications because they don’t
provide birth control. “We don’t [provide that] kind of medication....
The only thing we can give you is ibuprofen as an anti-inflammatory.” I
was glad when I didn’t have my period for two months but then when it
came, ahhhh. I wouldn’t want to get up.[184]

Women unable to obtain gynecological appointments reported
that, in some cases, the difficulty was directly attributed to the requirement
that national headquarters authorize outside appointments for specialist care.
Before ICE detained her, Nadine I. had made arrangements to see a gynecologist
for painful menstruation-related concerns.[185]
She said, “A week before I got my period I would be in agony. I would
pass heavy, huge clots.”[186]
At one Florida detention center, she put in four or five requests to see a
gynecologist and understood that the medical facility had sent in the required
papers for DIHS authorization to make the appointment. After six months passed
without a response, she was transferred to a second facility in another part of
the state. There she again filed a request. It was not until more than four
months later, over 10 months from her original request, that she saw a
gynecologist. During her months of waiting, she said, “They
wouldn’t give you anything.”[187]

Several other women repeated similar stories of difficulty
obtaining attention for gynecological concerns but never received an explanation
for the delay. In two instances, the requests simply went unanswered. After she
was detained, Jameela E. started getting her period every two weeks. She put in
multiple requests to consult a doctor without success.[188]
Lily F., who arrived at a detention center in Arizona and immediately sought
follow up for an abnormal Pap smear, waited months to be sent for treatment.
Transferred from a prison in California, she had the good fortune of having her
medical records follow her to ICE detention, including the abnormal Pap
results, but it still took six months for the facility to arrange for her to go
off-site for a biopsy.[189]

Sanitary Pads

They only give two pads. In the morning they come and
give you two. If you need more than that you have to go to the nurse.
“Why do you need more pads?” You have to tell her, “Because I
bleed so much.” But it has to be an extraordinary reason. If it’s
normal for you to have a heavy period—nothing. I bleed through three
pairs of pants. Well yes, if the officers see this, then it’s a reason.

—Nana B., Arizona, May 2008

Women at several facilities described arbitrary and
humiliating limitations on access to sanitary pads. ICE standards state that
facilities will issue feminine-hygiene items on an as-needed basis.[190]
However, as implemented in several detention centers, this policy has failed to
meet the UN Standard Minimum Rules on the Treatment of Prisoners requirement
that authorities provide individuals in custody with “water and with such
toilet articles as are necessary for health and cleanliness.”[191]
A number of women told Human Rights Watch that officers would distribute a
certain quantity of pads (two to six), and obtaining more “as
needed” posed a challenge. Nadine I. recalled that after you used your
allowance of four pads, the officers would hand them out one at a time.
“I needed three pads. It would just gush. It would end up soaking my
clothes. If my clothing got soaked, I could go through a shift change without a
change of clothing ... We were shaken down every night. If you had hoarded they
would take [away] the extra pads.”[192]

Such restrictions put women in the place of having to
justify to staff—and often not the medical professionals—the needs
occasioned by a private bodily function. Elisa G. had her period when the detention
center decided to lock down her entire housing unit for three days. The
circumstances forced her to appeal to the ICE officer visiting the unit: “I
had to ask [for pads] again. ‘I have my period. I have a lot of pain. I
need to shower. It’s not for [my benefit], it’s for my
roommate.’ [ICE officer:] ‘Give this lady two pads.’ I said,
‘Sir, you’re not understanding what I am saying. I need more than
two pads,’ ... I had to just sit on the toilet for hours because I had
nothing else [I could] do.”[193]

Several women at one facility expressed anger over a
recently instituted rule at that particular facility that required women to
work to receive any sanitary pads beyond their initial allotment.[194]
“I don’t have any problem with working, but I don’t feel that
it is right that you have to do that to get what you need,” said one
woman.[195]
Upon learning of this rule, the ICE field office said this rule was against
policy and would be taken up with the facility immediately.

Mammography and Breast Health

I worry about my breast a lot. I told my family,
“Don’t ask me to [appeal my immigration case].” I’m not
well and I would have to stay without medical care. I don’t know from
month to month ... things can get worse in my breast. It’s hurting me.
What was I supposed to do, die of cancer here? With adequate care, yes, I would
stay until the end. Because 22 years of my life [have been in the US]. My kids
are 12 and the United States is all they know. Depression, inadequate food,
detention? Yes, still I would have fought it indefinitely.

Topping even cervical cancer, breast cancer ranks as the
leading cause of cancer deaths among women. Calling mammograms “the gold
standard” for early detection of the disease, the American Cancer Society
recommends that women age 40 and over receive the screening yearly along with a
clinical breast exam from their health care provider, and that younger women
undergo the clinical exam every two to three years. The American Cancer Society
also counsels providers to tell women in their 20s and older about the benefits
and limitations of breast self-examinations.[197]

The DIHS approach to breast health is deficient in how it
addresses all three modes of breast cancer screening. National policy limits
access to mammograms and is completely silent on manual breast exams and
self-exams. The DIHS benefit package provides that mammography requests will be
considered for asymptomatic cases only after an individual has been in custody
for one year and only if that the individual is not facing imminent deportation.[198]
As discussed in regard to Pap smears, the one-year requirement contradicts
advice that these tests be administered annually, since it does not take into
account when the woman last obtained a screening prior to detention.

Four women who spoke with Human Rights Watch who had been in
custody over one year had not received either a mammogram or a manual breast
exam.[199]
Another woman had recently had surgery on her breast before being detained and
was instructed to get a mammogram every six months. Due for her six-month
mammogram at the time she was detained, she had to wait four months before the
detention authorities arranged for a mammogram, and did not receive another one
during her remaining 12 months in detention.[200]

Those women who have breast health concerns that require
examination and follow up care find the uncertainty around their health
compounded by uncertainty around the procedure for obtaining appropriate
medical attention. The Covered Services Package does not set out separate rules
on eligibility for diagnostic mammograms. However, presumably they would fall
under the rubric of procedures that might be authorized if supported by
clinical findings.[201]
Two women felt their lives were in jeopardy due to ICE’s failure to
follow up on concerns related to breast cancer. Antoinette L., quoted above,
waited months for a mammogram. When one was finally performed, and it was
determined that at least one of two lumps required further investigation, no
plan of action was formed; rather, she was told that this was something she
should pursue after leaving detention, whenever that might be.[202]
During Lily F.’s months-long wait for a mammogram she felt increasing
discomfort—“It’s like something bite[s] me”—and
worried with thoughts of her mother’s death from breast cancer: “I
have kids,” she said, “I don’t want to die here away from my
family.”[203]

Pregnancy

Prenatal and Postnatal Care

Pregnancy is one of the few women’s health concerns
ICE leadership has begun to address with appropriate gravity in policy, but
this improvement is limited by uneven implementation. It is ICE policy that
medical personnel immediately inform ICE when they discover a woman in custody
is pregnant in order that those responsible for case management can monitor her
progress and assess whether alternatives to detention might be available. For
the duration that prenatal and postnatal women are in custody, the ICE benefit
package states that prenatal exams are covered services and the new ICE medical
standard will provide that “[f]emale detainees shall have access to
pregnancy testing and pregnancy management services that include routine
prenatal care, addiction management, comprehensive counseling and assistance,
nutrition, and postpartum follow up.”[204]
As it stands, however, access to these services appears to vary considerably.

ICE contends that all pregnant women in detention receive
care from off-site obstetrical specialists, two of whom we spoke with and
confirmed that they provide the detained women with care commensurate with
community standards. Martha Burke, midwife at Su Clinica Familiar in Harlingen,
Texas, sees pregnant women detained at Willacy County Detention Center and told
Human Rights Watch that “What’s available to them is what’s
available to everyone.”[205]
Restrictions in the DIHS health coverage or in the logistics of transporting
women for services do not pose a problem according to Dr. F. Javier del
Castillo, who provides care at his practice in Brownsville, Texas, for women
detained at Port Isabel Service Processing Center: “If I say the lady
needs an ultrasound on Sunday, she’ll get it on Sunday.”[206]
Three women who visited off-site providers expressed satisfaction with the
services.[207]
Speaking of the Brownsville practice, Katherine I. said, “They [ICE] sent
me to the doctor three or four times, a women’s clinic in Brownsville....
They did a sonogram twice, checking everything. They treated me well.
There’s nothing that needs to be changed about Brownsville.”[208]

However, we spoke with three women in Arizona who never
reached an outside provider and for whom these services never materialized. In
two of those cases, the women told the medical staff of their pregnancy but
tested negative on the urine test the DIHS facilities use to detect pregnancy
in all detained women who are of child-bearing age. While accurate most of the
time, urine tests cannot predict pregnancy as early as blood tests.[209]

Failure to schedule necessary tests in a timely manner can
also delay or effectively deny access to prenatal care. Giselle M., pregnant
for the first time, entered ICE custody after her doctor identified an ovarian
cyst that threatened her five-month pregnancy and her health but, despite
bringing her need for frequent sonograms to the attention of ICE, never
obtained a prenatal exam of any kind during a month and a half in detention:

When I went to get a sonogram [before being detained] the
doctor found a cyst and wanted to monitor every two to three weeks because it
kept growing, growing to the size of a golf ball. It could erupt and hurt me or
the baby. I was a first time mom, I didn’t know what to expect. I told
them [at the detention center] this is what is going on and I need to see a
doctor. I would go every time with my little paper. They would say, “Go
ahead, put [in] a request.” But they never took me once. They never got
back to me.[210]

Giselle M.’s medical record indicates that the health
unit planned to include her the next time they arranged a visit with the
prenatal care provider, but did not make any accommodation for her to see a
specialist more quickly given her circumstances. After almost a month had
passed from when she was supposed to have had a sonogram according to the
schedule set by her doctor, Giselle filed another sick call request asking
about when she would have an appointment. The response from the medical staff
read, “You are scheduled to see PA soon, within 2 wks. Be patient.”[211]

Abortion

The Division of Immigration Health Services lists
“elective abortions” as an example of “commonly requested
procedures” that are generally not authorized under the Covered Services
Package. Several of the health service providers we questioned about the
accessibility of abortions indicated that ICE would not provide or fund an
abortion for a woman in custody, but could arrange transportation to an
appointment paid for by the woman herself or a third party. For many women who
arrive in detention without significant personal funds or connections to
resources in the immediate area, arranging to pay for the procedure, which can
cost hundreds of dollars, may be impossible. Detention health care providers
emphasized that abortion rarely comes up and some could not remember it ever
arising at all. In contrast, legal and social service providers noted the frequency
of sexual assault along the border and recalled clients seeking access to
abortion following incidents of rape. By comparison, unlike women in ICE
custody, women in the custody of the Bureau of Prisons may receive an elective
abortion at Bureau expense if the pregnancy is the result of rape.[212]

The reference to abortion not “coming up”
underscored the apparent omission of options counseling for women who test
positive on the pregnancy tests all women receive at intake.[213]
The DIHS Policies and Procedures Manual, which provides instructions to staff
at DIHS-operated facilities, requires providers to screen all women between the
ages of 10 and 55 for pregnancy, and to follow up on positive results with
notification to ICE and initiation of prenatal care. But there is no
recognition of the possibility that a woman might not wish to continue the
pregnancy.[214]
Indeed, one provider confirmed that unless the woman articulates a desire to
terminate the pregnancy, it is “care as usual.”[215]
Three women confirmed that they received no such counseling and one indicated
that she had planned to seek an abortion before being detained and would have
requested one in detention if that option had been explained to her:

You know when you find out you’re pregnant you feel
excited. That’s normal. But I didn’t feel that way. I was
indifferent. I had been thinking about abortion ... But the doctors [at the
detention center] were going to want me to tell them why I am thinking about
that. In that moment, if I had the option I would have done it [abortion] ... I
didn’t know that there were those kind of services available.[216]

According to standards issued by the National Commission on
Correctional Health Care, “pregnant inmates [should be] given
comprehensive counseling and assistance in accordance with their expressed
desires regarding their pregnancy, whether they elect to keep the child, use
adoption services, or have an abortion.”[217]
The Federal Bureau of Prisons requires wardens to “offer to provide each
pregnant inmate with medical, religious, and social counseling to aid her in
making the decision whether to carry the pregnancy to full term or to have an
elective abortion.”[218]
The new ICE medical standard states that pregnant women will have access to
“comprehensive counseling and assistance” as part of
“pregnancy management services” but does not elaborate on what this
entails, whether it covers information on abortion, how it will be made
available or who will be responsible for providing it.[219]

The duty to provide options counseling as a component of
pregnancy testing is especially important in the immigration detention context,
where desires to terminate a pregnancy may not be expressed because women are
unaware of the options that are legally available in this country. It is
incumbent on facilities to provide each pregnant woman with, at the very least,
a statement of the law and referrals to trained counselors for more information
as desired.

Nursing Mothers

Recent policy changes limiting the detention of nursing
mothers should prevent many women from having to contend with the detention
health services’ deficient approach to lactation. However, gaps in
implementation of the new policy raise concerns that women and children will
continue to suffer the short- and long-term effects of the scant medical
attention offered to nursing mothers in custody.

In a November 2007 directive, then Assistant Secretary Julie
Myers instructed ICE Field Offices to consider paroling all nursing mothers who
did not meet the criteria for mandatory detention[220]
and who did not present a national security risk.[221]
Nonetheless, two of the five nursing mothers who spoke with Human Rights Watch had
entered detention since the directive despite being eligible for parole under
its guidelines. In both cases, it appeared that there had been a breakdown in
communication between health services personnel and the case management
authorities in charge of parole decisions. The directive instructs field
offices to update ICE headquarters regarding decisions to detain nursing mothers;
however, there does not seem to be a functioning system for health services staff
to alert immediately field offices of the presence of nursing mothers, as they
must with pregnant women. In fact, when Human Rights Watch queried health
services administrators about their approach to lactation, none made reference
to the directive.

Women entering detention as nursing mothers, whether because
they meet the criteria for mandatory detention or because they have been
overlooked for parole, face considerable hardship, much of which could be
avoided with the most basic and inexpensive of interventions: a breast pump. Officials
at DIHS headquarters informed Human Rights Watch that breast pumps should be
made available to nursing mothers.[222]
However, of the five women who spoke with us about their experience of being
detained while lactating, none were offered the option of using a breast pump
when they presented for medical intake.[223]
The absence of this option caused intense physical discomfort including fever, chills,
and pain. Jennifer L., detained at two facilities in Texas, recounted, “I
told them at [the first detention center], and they called me after two-three
days. They gave me a little bit of pills for fever but the breasts were full.
And the fever was permanently in my body. No pump, no compress, no ice.”[224]
Similarly, Ashley J., detained in Arizona, said, “The ducts clogged. I
felt very bad. [My breasts] were so full my arms hurt. I couldn’t move my
arms.”[225]
In at least one case, mastitis resulted when these concerns went unaddressed.[226]

In addition to causing severe discomfort, the abrupt halt to
lactation has significant long-term implications for the woman and her child.
The women who spoke with Human Rights Watch had intended to continue
breastfeeding their children, in some cases, for years beyond the point of
their detention, as is typical in some cultures. Women who breastfeed benefit
from a reduced risk of breast and ovarian cancer, and their children are less
likely to suffer from pneumonia, viral infections, and, research suggests,
possibly obesity and diabetes.[227]
Despite one health services administrator’s contention that they had the
option of manually expressing milk, none of the women who went without a pump
were able to breastfeed after their release. Apart from depriving mother and
child of the physical benefits of continued breastfeeding, this carried with it
mental anguish for several women. “My focus was that I couldn’t
nurse my child. I could not go back to nursing,”[228]
said Ashley J. Mercedes O. remembered, “When I was thinking that my
daughter would look for me to nurse and I couldn’t, I felt useless.”[229]

Services for Survivors of Sexual
and Gender-Based Violence

While it is impossible to say what percentage of the women
detained by immigration authorities have survived sexual or gender-based
violence, observers’ estimates and the risks associated with migration
suggest it is high, and possibly climbing.[230]Even though this violence does not affect
women exclusively, Human Rights Watch considers it an important topic to
address in assessing the detention medical care system’s response to
women’s health needs. One health services administrator told Human Rights
Watch that she thought almost all the women in her care were touched by
domestic violence;[231]
at another facility a health official said that women reporting rape during
border crossing “is not surprising for us. Routinely we see it.”[232]

Among the women who spoke with Human Rights Watch, many
reported some form of sexual or gender-based violence in one or more stages of
the migratory process. For some, violence created the impetus for leaving their
country of origin: “I was afraid of my husband because he was abusing me
and if I go back he may do something to me,” said Yesenia P.[233]
For others, it transpired over the journey: “There was no lock on the
door to the bathroom [at the house where the coyotes kept us]. I had my back
turned in the shower when they came in ... afterwards I saw the condoms on the
floor,” said Suana Michel Q.[234]
For still others, it formed part of their experience in the US: “Little
by little I came to be in a relationship where [my husband] had the biggest
control over me because of my being illegal. He had total control over me,”
said Ashley J.[235]
For almost all, the violence had repercussions that persisted at the time of
their detention, such as severe mental distress.

In addressing the needs of survivors of sexual and
gender-based violence, inconsistency among detention centers’ approaches
means that some women benefit from a comprehensive approach to their mental and
physical health, but many go without any recognition of their needs. Both the
American Public Health Association and the National Commission on Correctional
Health Care recommend that women in custody receive services to address those
needs.[236]
The APHA standard states that, “Health care for incarcerated women should
include services that address the consequences of abusive relationships. The
safety of women should be ensured and care should be provided for the physical
and emotional sequela of abuse.”[237]

ICE policy fails to comprehensively address the needs of
survivors of violence. During the recent revision of the detention standards,
ICE added a standard on preventing and responding to sexual assault. While this
is an important improvement, the standard focuses on sexual assault that takes
place in ICE custody, and does not specifically address the needs of survivors
whose assault predates their detention. Discussions with facility health
services administrators and women currently or formerly detained by ICE
highlighted some existing positive practices but also weaknesses in several
areas: the identification of survivors, the range of services available to
address the short- and long-term consequences of violence, and the cultivation
of partnerships with community service providers.

Providing clear opportunities and safe spaces for women to
disclose their experience with violence is essential for ensuring the
well-being of women in custody, both because they may have urgent medical needs
and because the experience of detention may retraumatize them. The new ICE
medical standard directs facilities to question all detained persons at their
initial medical screening about past or recent sexual victimization, but only advises
questioning about other forms of physical abuse for individuals referred for
mental health evaluations.[238]
Despite assertions by facility providers that they ask about violence during medical
intake, a number of the women who spoke with Human Rights Watch did not recall
ever being asked. In cases where abuse or assault formed the basis for the
woman’s claim for immigration relief and would likely have been known to
her deportation officer, these issues still went unaddressed on the medical
side. Nora S. said that this subject did not come up with the detention staff:
“I only spoke about this in court.”[239]

Failure to identify survivors of violence during initial
screenings may be linked to the phrasing of the question and the person by whom
it is asked. On one intake form, the question is asked, “Have you ever
been the victim of a sex crime?”[240]
In addition to leaving out the most common form of gender-based
violence—domestic violence—the question may fail to elicit
information because of confusion over what constitutes a crime. National and international
standards on such screening typically advise a series of questions about
specific behaviors or incidents given the varying ways in which individuals,
especially those from diverse cultural backgrounds, may define violence or
crimes.[241]
In addition, in many cases, women may only be willing or comfortable disclosing
violence to a healthcare provider of the same gender. As noted above, the
initial medical screening at ICE facilities may be conducted by personnel who
are not medical professionals. Further, detainees are not necessarily screened
by someone of the same gender.

An early opportunity for an effective discussion of these
issues is particularly important for women who have suffered sexual violence
immediately preceding their detention. Otherwise, they may miss the window for
time-sensitive interventions such as emergency contraception (EC) and
prophylaxis for sexually transmitted infections (STIs), as well as the
collection of physical evidence of the attack. Health services administrators
told Human Rights Watch that while most women would have passed the time period
for EC to be effective at the point they reached the detention center, the
medication could be made available when appropriate, as could treatment for
STIs, crisis counseling, and referral to a local hospital for forensic evidence
collection. Despite the administrators’ statements regarding the
availability of EC, the medicine is not on the detention center formulary and,
unlike STI prophylaxis, it is omitted from the list of interventions to be made
available to rape survivors in the new standard on sexual abuse and assault
prevention and intervention.[242]
Officials from DIHS headquarters insisted that as an “emergency”
intervention, EC would be obtained in one manner or another to ensure a woman
would have timely access to it.[243]

Women in abusive relationships may also have immediate needs
and concerns for their safety. Ashley J. recounted the continuing torment her
abusive husband inflicted on her while she was in detention: “He would
tell me that he knew deportation officers and that he could see the videos of
how I was behaving. I believed that he could reach me inside, in detention.”[244]
Ashley J. informed her deportation officer of the situation so that he would
not provide her husband with information on her case, but she was not referred
by the officer for services nor was the subject broached by health care
providers.

For women whose experience with violence dates back further,
the needs for medical attention may still be acute. Human Rights Watch spoke
with two women, Nana B. and Jameela E., who suffered gynecological problems
while in detention that they attributed to female genital mutilation performed
in their country of origin. Regarding mental health care, Nora S., a survivor
of domestic violence, stated affirmatively, “I would definitely have
wanted help with this, the opportunity to talk about this. I was a victim of
domestic violence for 13 years.”[245]

Finally, a hallmark feature of one facility’s
successful response to one survivor’s assault was the detention
facility’s partnership with a local service provider. According to Suana
Michel Q., the health providers at Port Isabel Service Processing Center
referred her to the Family Crisis Center in Harlingen, Texas, who provided her
with counseling during her stay in detention and afterwards when she was
released into an alternative to detention program.[246]
Moreover, when she moved out of state, the facility provided her with a
referral to a similar organization at her destination. Unfortunately, not all
detention centers coordinate so closely with local resources. An advocate for
sexual assault survivors in Arizona told Human Rights Watch that she had repeatedly
sought to engage her local ICE field office in a dialogue on ways they could
cooperate to serve the needs of survivors but found them uninterested.[247]

Mental Health Care

Human Rights Watch decided to probe further on care for
mental health issues because it emerged in interviews as a priority issue for
many women in detention. When asked about the health concerns women frequently
presented, several health services administrators noted that women would
commonly seek care for depression or anxiety.[248]
This held true in Human Rights Watch’s interviews with women who were or
had been in detention.

According to the women we spoke with, the facilities’
response to mental health concerns ranked as one of the greatest deficiencies
in the detention health care system. In part, this failing represents one more
manifestation of the detention standard and benefit package’s emphasis on
acute care. The currently binding ICE medical standard provides for a mental
health screening, but does not elaborate on what treatment is available.[249]
The new ICE medical standard shows improvement in that it stipulates that every
facility shall provide mental health care to the individuals in its custody and
that a treatment plan will be devised for individuals with mental health needs.[250]
However, the extent to which an effective treatment plan can be implemented may
be limited by the off-site services authorized under the DIHS Covered Services
Package, which states that non-emergency services are generally not covered and
that counseling and psychotherapy are not covered unless approved by the
medical director.[251]
DIHS officials assured Human Rights Watch that counseling is available and that
medication would not be prescribed alone but as part of a comprehensive
treatment plan, as is contemplated in relevant health standards.[252]

However, a number of women cited difficulty obtaining
counseling or accessing other options for treating mental health concerns
beyond medication alone: “I’ve never been offered therapy but I
have asked for information to try to get something done but I’ve never
received any replies . . . [The clinic manager] keeps telling me that there is
nothing that the institution can do with us because we are not going to be here
for a very long time,” said Itzya N., who at the time had already been
detained for more than four months.[253]
Her severe depression led the facility to twice place her on suicide watch and
to prescribe her increasingly strong doses of medication, but without a
complementary course of therapy, as she requested. Beatriz R., on the other
hand, said she had been told that counseling was available but was never able
to avail herself of it: “They say, ‘Oh, you can speak to a
counselor anytime you want.’ But they’re not there or they’re
busy. Before they said they would call me. I don’t know who the counselor
is. They never called me to talk with the counselor.”[254]

Several women who had suffered from depression or anxiety
told Human Rights Watch that they were dissuaded from even seeking help by the
knowledge that, at best, they would get medication but no counseling or
therapy.[255]
Others delayed or decided against reporting their mental health concerns out of
fear that they would face negative consequences.[256]
Maya Z. said that facility staff as well as other women detained at the
facility advised her to cope with her anxiety problems by herself because
bringing it to the attention of medical staff might result in a transfer to a
less desirable facility.[257]
Another woman found that the medical staff immediately interpreted a request to
speak with a psychologist as an indication of suicidal ideation. After her
request, the staff asked her if she wanted to kill herself, to which she
responded that she would rather be dead than have been taken into detention,
but that she had no intention of harming herself. She was immediately put on
lockdown for several days, which only compounded her distress and dissuaded her
from raising the issue again.[258]

The medical system’s focus on crisis intervention also
serves to exclude preventive care for individuals who develop depression and
anxiety in response to the experience of being detained. Women, both those who
have pre-existing mental health concerns and those who do not, face a host of
stressors brought on by detention. These may include separation from children
and family members who depend on them, uncertainty about whether they will be
allowed to remain in the country, trauma from their arrest, and the deprivation
of their liberty inside the facility. One DIHS healthcare provider acknowledged
to Human Rights Watch that detention does take a toll on mental well-being but
added that the medical staff has limited options for alleviating these
stressors before the situation degrades to the point where intervention by
mental health professionals is necessary.[259]

These needs might be met through the assistance of a social
worker who could, for example, make inquiries into the well-being of separated
family members or contact deportation officers to discuss the case management
of individuals having a particularly negative response to detention. But the
women we spoke with pointed to even smaller interventions that, where
available, helped a great deal. Comparing two facilities, Nora S. said that at
the first one, a service processing center, they “had the heart to
help.” This, she explained, meant that “they would give us paper,
pens to write our families every day,” and offered her opportunities to
call her family, as opposed to the second facility, a contract detention
center, where she was unable to call her family for four weeks. “I mean
the fact that they were allowing people to communicate with families is
emotional support because it is very hard to be locked up,” Nora S. said.
The facility’s enabling them to reach family members meant that they “were
not abandoned.”[260]

VI. Legal Standards

International Legal Standards

Failures in the detention medical care system’s
response to women’s health concerns implicate fundamental human rights,
including international legal protections for the right to health, the right to
non-discrimination, and the rights of detained persons. A number of these
protections are enshrined in the International Covenant on Civil and Political
Rights, the Convention against Torture, and the Convention on the Elimination
of All Forms of Racial Discrimination, treaties which the US has ratified. The
right to health itself is articulated in the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which the US has signed but not
yet ratified.

The Right to Health

By restricting coverage of basic women’s health
services, failing to ensure that appropriate care is delivered in a timely way,
and paying insufficient attention to the manner in which services are
delivered, ICE undermines the right to health of the women in its custody. The
International Covenant on Economic, Social and Cultural Rights (ICESCR)
recognizes “the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.”[261]
The US, as a signatory, has an obligation not to undermine the object and purpose
of the treaty.[262]
The US is additionally committed to protecting the right to health as a member
of the United Nations under the Universal Declaration of Human Rights. The
right to health is inseparable from provisions on the right to life and the right
to freedom from degrading treatment that are included in the International
Covenant on Civil and Political Rights and the Convention against Torture, both
of which the US has ratified.[263]

The Committee on Economic, Social and Cultural Rights, the
body charged with interpreting and monitoring the implementation of the ICESCR,
has identified four essential components to the right to health: availability,
accessibility, acceptability and quality.[264]
The health care provided in US immigration detention is deficient in each of
these areas. Availability refers to the existence of health services, personnel,
and materials of a “sufficient quantity.”[265]
ICE fails in this respect when women in custody seek professional services,
such as therapy for mental health issues or other specialist care, and
experience delays or denials due to medical staff shortages. In addition, the
Committee’s assessment of availability looks at essential drugs as
defined by the World Health Organization Action Programme on Essential Drugs.
This list includes hormonal contraception, which is not part of the DIHS
formulary. Moreover, the limitation on access to contraception infringes on
what the Committee has identified as a freedom encompassed in the right to
health: “the right to control one's health and body, including sexual and
reproductive freedom.”[266]

Accessibility as an element of the right to health breaks
down into four sub-parts: non-discrimination in access, physical accessibility,
economic accessibility, and information accessibility. The Committee on
Economic, Social and Cultural Rights has noted that the governmental obligation
to respect the right to health includes "refraining from denying or
limiting equal access for all persons, including prisoners or detainees,
minorities, asylum seekers and illegal immigrants, to preventive, curative and
palliative health services."[267]
The restricted scope of care available under the Covered Services package
limits access to a range of such services for individuals in ICE custody. With
respect to information accessibility, which includes the right to “seek,
receive and impart information and ideas concerning health issues,”[268]
ICE falls short when it impedes women’s access to their health records
either by failing to transfer medical information between facilities or
stonewalling records requests. Also, by omitting options counseling in its
handling of pregnancy, ICE denies women access to information about the range
of health services that are legally available to them.

Regarding the acceptability of health services, ICE has an
obligation to ensure that the services it provides are “respectful of
medical ethics and culturally appropriate, i.e. respectful of the culture of
individuals, minorities, peoples and communities, sensitive to gender and life-cycle
requirements, as well as being designed to respect confidentiality and improve
the health status of those concerned.”[269]
In the interviews Human Rights Watch conducted, the issue of acceptability
emerged with inconsistencies in the use of translators for non-English
speakers, in the sophistication of the assessment of women’s experience
with violence, and in providers’ sensitivity to the impact of the
detention environment on individuals. Further, breaches of confidentiality in
the course of medication distribution and the use of security precautions that
intruded on the privacy of exams and treatment raised questions around the
observance of medical ethics.

ICE health care is also unsatisfactory in terms of quality.
Under the Committee’s analysis, quality refers to the appropriateness of
care by medical and scientific standards.[270]
ICE policy diverges from standards of medical practice in the United States in
its approach to certain basic women’s health services, including Pap
smears and mammograms. In other areas, including services for nursing mothers,
failures at the level of policy implementation prevent women from accessing
care consistent with prevailing medical standards. In addition, by imposing few
requirements for professional accreditation on its facilities, ICE removes
itself from rigorous external evaluation of its operations that would help to
monitor the appropriateness of the care available.

In addition to falling short on benchmarks of availability,
accessibility, acceptability and quality, ICE’s performance on
safeguarding women’s health is also problematic under other international
legal standards. For example, the inconsistent care provided to pregnant women
in ICE custody raises issues under article 12 of the Convention on the Elimination
of All Forms of Discrimination against Women, a treaty the US has signed but
not ratified. Article 12 obligates governments to “ensure to women
appropriate services in connection with pregnancy, confinement and the
post-natal period, granting free services where necessary, as well as adequate
nutrition during pregnancy and lactation.”[271]
Similar provisions regarding prenatal and postnatal care and support for
breastfeeding appear in the Convention on the Rights of the Child, which the US
has also signed but not ratified.[272]

Further, the Committee on the Elimination of Discrimination
against Women recommends, as one step toward assuring women equal access to
health care, that governments “establish or support services for victims
of family violence, rape, sex assault and other forms of gender-based violence,
including refuges, specially trained health workers, rehabilitation and counselling.”[273]

The Right to
Non-Discrimination

Non-discrimination represents a central principle of
international human rights law.[274]
As a party to the International Covenant on Civil and Political Rights (ICCPR),
the US is obligated to guarantee effective protection against discrimination.[275]The Convention on the Elimination of All Forms
of Discrimination against Women specifically mandates that states take action
to “eliminate discrimination against women in the field of health care in
order to ensure, on a basis of equality of men and women, access to healthcare
services, including those related to family planning.”[276]
While both men and women may experience deficiencies in the medical care
provided by ICE, certain deficiencies are discriminatory due to the
disproportionate impact they have on women. The lack of coverage for family
planning methods affects both sexes, but women are particularly affected
because the lack of services places them at risk of unintended pregnancy, along
with its accompanying health risks and many other profound consequences.
Further, women may be disproportionately affected by the limitations on
preventive and routine reproductive health care, for which women generally have
greater needs.[277]

The Rights of Individuals Deprived
of their Liberty

Women taken into the custody of immigration authorities do
not lose their fundamental rights. The International Covenant on Civil and
Political Rights obligates states to ensure that “all persons deprived of
their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.”[278]
This, the UN Human Rights Committee has explained, entails a positive
obligation to see that those individuals suffer no “hardship or
constraint other than that resulting from the deprivation of liberty; respect
for the dignity of such persons must be guaranteed under the same conditions as
for that of free persons. Persons deprived of their liberty enjoy all the
rights set forth in the Covenant, subject to the restrictions that are
unavoidable in a closed environment.”[279]

There is no doubt that both the humiliating treatment of
women in ICE custody, and the lack of access to routine health services are far
from unavoidable, and can be traced to policy choices well within the power of
the government to change. Human Rights Watch’s investigation revealed
that the treatment of women in ICE custody is often humiliating and at times
crosses the line into cruel, inhuman, and degrading treatment. Unnecessary use
of restraints and strip searches, arbitrary restrictions on sanitary supplies,
and insufficient privacy during medical examinations undermine the dignity of
women in detention. The right to a basic level of healthcare in detention is
fundamental to maintaining human dignity and too often is not afforded to women
in ICE custody.

Addressing a concern specific to women in detention, the
Human Rights Committee has advised states that “Pregnant women who are
deprived of their liberty should receive humane treatment and respect for their
inherent dignity at all times, and in particular during the birth and while
caring for their newborn children; States parties should report on facilities
to ensure this and on medical and health care for such mothers and their
babies.”[280]
In this respect, ICE’s policy permitting shackling of pregnant women is
at odds with a growing international consensus against the use physical
restraints on women during pregnancy, delivery, and the immediate postnatal
period. The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment has described pregnant women being shackled
or otherwise restrained as “completely unacceptable, and could certainly
be qualified as inhuman and degrading treatment.”[281]
The Human Rights Committee commented on the continuation of this practice in
the United States in its concluding observations to the country’s second
and third periodic reports in June of 2006 and recommended that the government “prohibit
the shackling of detained women during childbirth.”[282]

Finally, ineffective grievance procedures and the Department
of Homeland Security’s failure to convert the ICE detention standards into
enforceable regulations impede detainees in enforcing their rights. The ICCPR,
article 2.1, requires that states parties undertake to “ensure” the
Covenant’s rights to all persons within their territory. Without an
effective remedy for the violation of the right to dignity, the enjoyment of
the right cannot be guaranteed. The Human Rights Committee, which interprets
the ICCPR and evaluates state compliance, has urged states to specify in their
reports whether individuals in detention “have access to such information
and have effective legal means enabling them to ensure that those rules are
respected, to complain if the rules are ignored and to obtain adequate
compensation in the event of a violation.”[283]

Defining a standard of care

The basic international healthcare standard for individuals
in state custody is that such persons are entitled to at least comparable
services and care as those who are at liberty. The principle of equivalence,
articulated in the Basic Principles for the Treatment of Prisoners, adopted by
the UN General Assembly in 1990, holds that:

Except for those limitations that are demonstrably
necessitated by the fact of incarceration, all prisoners shall retain the human
rights and fundamental freedoms set out in the Universal Declaration of Human
Rights, and where the State concerned is a party, the International Covenant on
Economic, Social and Cultural Rights, and the International Covenant on Civil
and Political Rights and the Optional Protocol thereto, as well as such other
rights as are set out in other United Nations covenants... Prisoners shall have
access to the health services available in the country without discrimination
on the grounds of their legal situation.[284]

According to the UN principles on the ethical
responsibilities of healthcare providers, health professionals should provide
individuals imprisoned or detained with the same quality and standard of care
as those who are not imprisoned or detained.[285]
This suggests that the appropriate standard for DIHS should be a level of
physical and mental health care equivalent to that available in the community,
a bar much higher than the standard embodied in the Covered Services Package or
even the new ICE medical standard.[286]

Domestic Legal Standards

The US Constitution establishes a right to medical care for
individuals in government custody. The eighth amendment prohibition on cruel
and unusual punishments entitles individuals convicted of crimes to medical
care. However, since immigration detention is not punitive, the right to medical
care for individuals held by ICE derives from the fifth amendment, which states
that no person shall “be deprived of life, liberty, or property, without
due process of law.”[287]
Despite the difference in constitutional origin, the rationale behind both protections
lies in the custodial responsibility assumed by the state when it deprives the
individual of liberty:

[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution
imposes upon it a corresponding duty to assume some responsibility for his
safety and general well-being. The rationale for this principle is simple
enough: when the State by the affirmative exercise of its power so restrains an
individual's liberty that it renders him unable to care for himself, and at the
same time fails to provide for his basic human needs—e.g., food,
clothing, shelter, medical care, and reasonable safety—it transgresses
the substantive limits on state action set by the Eighth Amendment and the Due
Process Clause.[288]

The government does not escape this duty when it engages a
contractor to provide detention services. The US Supreme Court has held that “Contracting
out prison medical care does not relieve the State of its constitutional duty
to provide adequate medical treatment to those in its custody, and it does not
deprive the State's prisoners of the means to vindicate their Eighth Amendment
rights.”[289]

In addition, the scope of the protection for individuals
held by ICE in civil custody may exceed that afforded to convicted individuals.
The Ninth Circuit Court of Appeals has held that an individual confined
awaiting adjudication under civil process cannot be punished and that
punishment occurs where “the individual is detained under conditions
identical to, similar to, or more restrictive than those under which pretrial
criminal detainees are held.”[290]
Thus, as another court held, “persons in non-punitive detention have a
right to ‘reasonable medical care,’ a standard demonstrably higher
than the Eighth Amendment standard.”[291]
However, in the absence of case law specific to immigration, applications of
the eighth amendment protection provide guidance on at least the very minimum
that the constitution requires ICE to provide.

In Estelle v. Gamble, the landmark case defining
custodial responsibility for medical care, the US Supreme Court held that the
eighth amendment prohibits “deliberate indifference” on the part of
detention authorities to a “serious medical need” of a prisoner in
their custody.[292]
Federal courts have had several occasions to apply the Estelle standard
to specific women’s rights concerns and, in some cases,
reached differing results. The entire US Court of Appeals for the Eighth
Circuit has granted a rehearing to determine the constitutionality of shackling
a woman during labor, after a three-judge panel of that court held that the
practice did not constitute deliberate indifference to her serious medical
need.[293]
The US District Court for the District of Columbia has already banned the
practice, holding that shackling during labor and shortly thereafter is
“inhumane” and constitutionally impermissible.[294]
In the area of abortion rights, the US Court of Appeals for the Third Circuit has
recognized access to elective, non-therapeutic abortions as a serious medical
need.[295]
While disagreeing with the finding of a serious medical need, the Eighth
Circuit nonetheless invalidated a ban on transporting incarcerated women for
abortion on the basis of its unreasonable restriction on a woman’s right
to abortion under the fourteenth amendment.[296]
The obligation to ensure that incarceration does not force a woman to forfeit
her constitutional right to abortion has also been interpreted to include
ensuring access to funding for the procedure.[297]

In a notable 1994 case, the US District Court in the
District of Columbia found that inadequate obstetrical and gynecological care
at a correctional treatment facility violated the division of the DC Code
governing the treatment of prisoners, which the court described as a
codification of the common law rule that prison officials have a duty of
reasonable care in the protection and safekeeping of individuals who are
imprisoned. Stating that “in the area of medical care, physicians owe the
same standard of care to prisoners as physicians owe to private patients
generally,” the court found that inadequate gynecological examination and
testing, STD testing, follow up care, health education, and prenatal care
violated the law.[298]

VII. Recommendations

To the Division of Immigration Health Services

General Policy Recommendations

Amend the Covered Services Package to remove inappropriate
consideration of an individual’s deportation prospects in
determining eligibility for medical procedures and harmonize the package
with the revised ICE medical standard so that detained individuals can
access a full continuum of health services, whether available inside or
outside the detention facility.

Create mechanisms to improve the timeliness of response to
the health care needs of individuals in ICE custody and to their submission
of complaints.

Recruit qualified health professionals to maintain a
sufficient number of medical staff at facilities to address the nationwide
shortages.

Ensure that individuals in custody can request translation
during their medical visits and are advised of their right to do so.

Increase the number of qualified staff reviewing Treatment
Authorization Requests to remove bottlenecks that cause delays in
treatment.

Ensure that the pursuit of cost savings does not override
the medical needs of the patients in the consideration of Treatment
Authorization Requests.

Improve the screening for sexual and gender-based violence
according to Family Violence Prevention Fund and WHO guidance.[299]

Encourage facilities to establish partnerships with
community organizations that provide services to survivors of sexual and
gender-based violence to increase women’s access to services during
and following their period of detention.

Encourage facilities to establish partnerships with
community organizations to ensure that detainees receive referrals for
medical care after detention.

Women’s Health Policy Recommendations

Amend the Covered Services Package to ensure coverage for
Pap smears and mammograms for screening purposes according to community
standards.

Implementation and Training Recommendations

Conduct intensive outreach to facilities to ensure that
both health professionals and security personnel are aware that the men
and women in their custody are entitled to the same level of medical care
as individuals who are not detained and assure health professionals that
ICE and DIHS policies are intended to support and not inhibit their
delivery of care consistent with standards of medical practice in the
United States.

Ensure that all facility medical staff conducting intake
examinations are aware of the jurisdiction’s legal standards and
ICE’s policy on access to abortion. Require staff to apprise women
testing positive for pregnancy that they have legal rights regarding the
continuation or termination of their pregnancy, and refer women who have
questions about access to abortion for a consultation with a licensed
abortion provider.

Ensure that facilities have ready access to breast pumps
and are aware of their duty to offer them to nursing mothers who come into
custody.

Provide training to medical staff conducting intake
examinations on the manifestations of trauma in women and appropriate
techniques for talking about sexual and gender-based violence.

To Immigration and Customs Enforcement

General policy improvements

Require all facilities holding individuals on behalf of
ICE to maintain accreditation with the National Commission on Correctional
Health Care.

Improve precautions to protect the privacy of
individuals’ medical examinations, including by requiring security
personnel to remain outside the exam room in the absence of extraordinary
security concerns.

Amend the detention standards to require that individuals
receive their complete medical records on release or deportation and to
mandate that the full medical record accompany individuals who are
transferred between facilities, regardless of whether DIHS operates the
facilities.

Improvements in the treatment of women

Implement the recommendations of the UN special rapporteur
on the human rights of migrants, including in particular the
recommendations that ICE develop gender-specific detention standards with
attention to the medical and mental health needs of women survivors of
violence and refrain from detaining women who are suffering the effects of
persecution or abuse, or who are pregnant or nursing infants.[300]

Incorporate into the ICE medical standard the American
Public Health Association’s standards on women’s health care
in correctional institutions and the recommendations of the National
Commission on Correctional Health Care’s policy statement on women’s
health care.[301]

Establish a formal process for ICE officers charged with
case management to coordinate with health services personnel to ensure
that nursing mothers, pregnant women, and other women with significant
health concerns are immediately identified and considered for parole.

Amend the ICE detention standard on the use of force to
specifically prohibit the shackling of women during pregnancy, delivery,
and in the immediate postnatal period.

Consider the availability of specialist services for
obstetrics and gynecology in the surrounding community when determining
the suitability of facilities for the detention of women.

Require that facilities make sanitary pads and other
materials and facilities necessary for cleanliness and dignity available
without restriction.

Implementation of existing and improved polices

Improve the current system for receiving and tracking
complaints made by individuals in ICE custody. Ensure that all individuals
receive notice of complaint procedures in their native languages and that
they are informed of the availability of these mechanisms for addressing
medical care complaints.

Provide public notice of penalties imposed on facilities
for violations of the detention standard.

Insist that private contractors engaged to monitor
facility compliance with detention standards include professionals with
medical expertise in the review of compliance with the medical standard.
Provide copies of the private contractors’ findings to oversight
committees in Congress.

To the US Department of Homeland Security

Convert the ICE detention standards, including the ICE
medical standard, into federal administrative regulations so that they
have the strength of law and detained individuals and their advocates will
be able to have recourse to courts to redress shortfalls in health care.

Require detention facilities to provide regular reports to
the DHS Office of Inspector General detailing the number of grievances
received regarding medical care and their disposition at the facility
level.

Designate a focal point for the protection of the rights
of women in immigration detention within the DHS’s Office for Civil
Rights and Civil Liberties.

To the US Congress

Pass legislation to require that all individuals in
immigration detention have access to medical care that meets standards of
medical practice in the United States.

Establish a commission of independent experts to examine
the status of the ICE medical system and identify means of ensuring that immigrants
in ICE custody have access to medical care that meets standards of medical
practice in the United States.

Acknowledgments

Human Rights Watch recognizes the bravery and strength of
the women who spoke with us for this report, some of whom waited hours or
traveled far to speak with researchers, many of whom shared deeply painful and
private memories and did so in spite of fears of retaliation, and all of whom
participated with the sole incentive of contributing to an effort to ensure the
protection of women’s human rights in detention.

We express our most sincere appreciation to the
organizations and individuals whose partnership enabled this report to go
forward. For their indispensable facilitation of this research in manifold
ways, as well as their longstanding advocacy on these issues, we thank the
Florida Immigrant Advocacy Center, the South Texas Pro Bono Asylum
Representation Project, the Florence Immigrant and Refugee Rights Project, the
Legal Aid Society in New York City, and the Capital Area Immigrants Rights
Coalition. We also thank the numerous interpreters, private attorneys,
activists, and social service providers we spoke with or worked with for their
contributions to the research. In addition, we recognize our colleagues at the Southwest Institute for Research on
Women, the Women’s Refugee Commission, the National Immigrant Justice
Center, the American Civil Liberties Union, Human Rights First, the Bellevue/NYU
Program for Survivors of Torture, Amnesty International-USA, and fellow members
of the ICE-NGO working group for their ongoing insight and collaboration.

We wish to thank the Office of Policy and the Office of
Detention and Removal Operations at Immigration and Customs Enforcement for
their assistance in arranging our facility visits and for their openness to
dialogue on the subject of our research. We also express our gratitude to the
ICE Miami, San Antonio, and Phoenix field offices which directly coordinated
our facility visits, and to the facility officials and the health personnel who
spoke with us for this report.

Meghan Rhoad, researcher in the Women’s Rights
Division at Human Rights Watch, wrote this report on the basis of research
conducted by the author, with research support from Janet Walsh, deputy
director of the Women’s Rights Division, and Jessica Stern, consultant to
the Women’s Right Division. The report was reviewed by Janet Walsh; Nisha
Varia, acting deputy director of the Women’s Rights Division; David
Fathi, director of the US Program; Alison Parker, deputy director of the US
Program; Megan McLemore, researcher in the Health and Human Rights Program;
Bill Frelick, director of the Refugee Policy Program; Dinah PoKempner, general
counsel, and Joe Saunders, deputy program director. Nina Rabin at the Southwest
Institute for Research on Women and Kelleen Corrigan at the Florida Immigrant
Advocacy Center provided comments on draft portions of this report. Human
Rights Watch takes full responsibility for the views expressed in this report.

For their assistance with our Freedom of Information Act
request, we thank Dinah PoKempner, general counsel to Human Rights Watch;
Leslie Platt Zolov, counsel to Human Rights Watch; and Ethan Strell and
Catherine Sheehy, of the law firm of Carter Ledyard & Milburn LLP, for
their pro bono counsel.

[3]
In addition to this project, Human Rights Watch undertook research on two other
topics related to immigration detention in the US: transfers within immigration
detention and parole of asylum seekers under a policy directive introduced in
November 2007. Research into the other subjects was conducted by other
researchers, and included visits to certain facilities identified for this
project as well as other facilities.

[4]
The ten facilities were Broward Transitional Center, Pompano Beach, Florida;
West Palm Beach County Jail, West Palm Beach, Florida; Glades County Jail,
Moore Haven, Florida; Monroe County Detention Center, Key West, Florida; South
Texas Detention Complex, Pearsall, Texas; Willacy Detention Center,
Raymondville, Texas; Port Isabel Service Processing Center, Los Fresnos, Texas;
Eloy Detention Center, Eloy, Arizona; Pinal County Jail, Florence, Arizona; and
Central Arizona Detention Center, Florence, Arizona. We also visited and talked
with health care providers at Krome Service Processing Center in Miami,
Florida. Krome, which does not hold women, provided a point of comparison for
our visits to the other facilities. In later research conducted separately from
the agreement with ICE, we visited an additional county jail in New Jersey that
holds women in ICE custody.

[5]
ICE informed Human Rights Watch that West Palm Beach County Jail in Florida
declined the visit. No explanation for the refusal was given. Because the jail
is designated by ICE to hold individuals for less than 72 hours, it is not
subject to the detention standards. However, Human Rights Watch had requested
the visit upon hearing that individuals in ICE custody did in fact spend more
than 72 hours at the jail and that conditions there were especially poor.

[6]
US Department of Justice, “Prisoners in 2006,” Bureau of Justice
Statistics Bulletin, December 2007, p.9; Email communication from Kendra
Wallace, national outreach coordinator, Office of Policy, Immigration and
Customs Enforcement (ICE), to Tara Magner, director of policy, National
Immigrant Justice Center, and co-chair, ICE-NGO Working Group, May 14, 2008.

[8]
This figure from the 2007 fiscal year was the most recent available. Testimony
of Gary Mead, deputy director, Office of Detention and Removal Operations, ICE,
before the US House of Representatives Judiciary Committee, Subcommittee on Immigration,
Citizenship, Refugees, Border Security and International Law, February 13,
2008, http://judiciary.house.gov/hearings/pdf/Mead080213.pdf (accessed October
2, 2008), p. 2.

[11]
Mere presence in the US without documents is an administrative violation, not a
criminal offense. Entering without proper documentation can be a criminal
offense. See CRS, “Health Care for Noncitizens in Immigration
Detention,” p. 3, n. 9.

[12]
As of December 31, 2006, approximately 42 percent of the individuals in
immigration detention were facing deportation proceedings due to past criminal
convictions. US Government Accountability Office (GAO), “Alien Detention
Standards: Telephone Access Problems Were Pervasive at Detention Facilities;
Other Deficiencies Did Not Show a Pattern of Noncompliance,” GAO-07-875,
July 2007, http://www.gao.gov/new.items/d07875.pdf (accessed October 2, 2008),
p. 48. Human Rights Watch has documented the harmful impact on families and
communities in the US of the policy of mandatory deportation for non-citizens
with criminal convictions, including minor, non-violent offenses. See Human
Rights Watch, United States - Forced Apart: Families Separated and
Immigrants Harmed by United States Deportation Policy, vol. 19, no. 3(G),
July 2007, http://hrw.org/reports/2007/us0707/.

[13]
Memorandum from Bo Cooper, general counsel, Immigration and Naturalization
Services (INS), US Department of Justice, to Michael Pearson, executive
associate commissioner for field operations, INS, and Jeffery Weiss, director,
Office of International Affairs, INS, November 9, 2001 (outlining the
government’s authority to detain refugees who do not adjust status).

[14]
An unpublished 2006 report by the Vera Institute of Justice identified 125
people in immigration detention whose lawyers believed they had valid
citizenship claims. Marisa Taylor, “Immigration officials detaining,
deporting American citizens,” McClatchy Newspapers, January 24,
2008, http://www.mcclatchydc.com/227/story/25392.html (accessed October 2,
2008). But see, Congressional testimony of Gary Mead, February 13, 2008, p.9
(asserting that ICE has never knowingly or intentionally detained a US
citizen).

[15]
In the immigration law context, “removal” is synonymous with
deportation.

[22]
The new ICE medical standard reads: “Procedures in italics are
specifically required for SPCs and CDFs. IGSAs must conform to these
procedures or adopt, adapt or establish alternatives, provided they meet or
exceed the intent represented by these procedures.” ICE/DRO [Detention
and Removal Operations] Detention Standard No. 22, “Medical Care,”
December 2, 2008, http://www.ice.gov/doclib/PBNDS/pdf/medical_care.pdf
(accessed February 23, 2009), p. 1. Similar language appears in the old
standard. INS Detention Standard, “Medical Care,” September 20,
2000, http://www.ice.gov/doclib/pi/dro/opsmanual/medical.pdf (accessed February
26, 2009).

[23]
As stated in footnote 11, mere presence in the US without documents is an
administrative violation, not a criminal offense.

[24]
For a full discussion of the principle of proportionality, see Human Rights
Watch, United States - Forced Apart: Families Separated and
Immigrants Harmed by United States Deportation Policy, vol. 19, no. 3(G),
July 2007, http://hrw.org/reports/2007/us0707/, pp. 52-56.

[25]
For example, from 1997 to 2000 the Vera Institute of Justice cooperated with
the Immigration and Naturalization Service, a predecessor to ICE, to pilot an
alternative to detention model called the Appearance Assistance Program.
Through the AAP, individuals in immigration proceedings participated in a
supervised release system wherein they regularly reported to a case manager and
were provided with information on their legal rights and referrals to community
resources. The Vera Institute reported that 91 percent of participants in the
intensive supervision program appeared for all of their required hearings.
Eileen Sullivan, et al., Vera Institute of Justice, “Testing Community
Supervision for the INS: An Evaluation of the Appearance Assistance Program,”
August 1, 2000, http://www.vera.org/publication_pdf/aapfinal.pdf (accessed
October 5, 2008), p. ii. A similar undertaking by Lutheran Immigration and
Refugee Service focusing on asylum seekers and working with community shelters
reported a 96 percent success rate. Esther Ebrahimian, “The Ullin 22:
Shelters and Legal Service Providers Offer Viable Alternatives to
Detention,” Detention Watch Network News, August/September 2000, p.8.,
quoted in “Statement from Faith Representatives Following April 30 Tour
of the Wackenhut Detention Center,” House Judiciary Committee,
Subcommittee on Immigration, May 3, 2001, http://www.loc.gov/law/find/hearings/pdf/00092836976.pdf
(accessed October 6, 2008), p.85.

[28]
Memorandum of Agreement between the Department of Homeland Security and the US
Department of Health and Human Services, US Public Health Service, August 23,
2007 [effective on October 1, 2007], cited in CRS, “Health Care for
Noncitizens in Immigration Detention,” p. 10.

[30]
“Nationally, contract detention facilities and service processing centers
using Public Health Service clinicians had a 36% vacancy rate in October 2007.
The contract detention facility in Pearsall, Texas, which housed more than
1,500 detainees the day we visited, had 22 medical staff vacancies. Given its
rural location and the nation’s high demand for nurses, staff in Pearsall
said that they will endure medical staff shortages indefinitely.” Department
of Homeland Security Office of the Inspector General (DHS OIG), “ICE
Policies Related to Detainee Deaths and the Oversight of Immigration Detention
Facilities,” June 2008, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_08-52_Jun08.pdf
(accessed October 8, 2008), p. 33.

[35]
The revised set of ICE detention standards issued in 2008 consists of 41
standards. Prior to the revision, there were 38 ICE detention standards. The
revised set includes new standards addressing staff training, sexual assault
prevention and intervention, and news media interviews and tours.

[36]
Currently binding ICE medical standard: INS Detention Standard, “Medical
Care,” September 20, 2000; new ICE medical standard: ICE/DRO Detention
Standard No. 22, “Medical Care,” December 2, 2008. The title for
the currently binding ICE medical standard refers to the INS (Immigration and
Naturalization Service), the predecessor to ICE, because the standard was
developed prior to the creation of ICE in 2003.

[41]
Of the 5,761 asylum seekers who were detained in the 2006 fiscal year, 1,559
(27 percent) were detained for more than 180 days. CRS, “Health Care for
Noncitizens in Immigration Detention,” p. 19.

[42]
See Physicians for Human Rights and the Bellevue/NYU Program for Survivors of
Torture, “From Persecution to Prison: The Health Consequences of
Detention for Asylum Seekers,” June 2003, http://physiciansforhumanrights.org/library/documents/reports/report-perstoprison-2003.pdf
(accessed October 6, 2008).

[58]
United Nations Human Rights Committee, “Consideration of Reports
Submitted by States Parties under Article 40 of the Covenant, Conclusions of
the Human Rights Committee, United States of America,” CCPR/C/USA/CO/3/Rev.1,
December 18, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenElement
(accessed October 10, 2008), para. 8.

[59]
UN Human Rights Council, Report of the special rapporteur on the human rights of migrants, Jorge
Bustamante, Mission to the United States of America, A/HRC/7/12/Add.2, March 5,
2008, http://www2.ohchr.org/english/bodies/hrcouncil/docs/7session/A-HRC-7-12-Add2.doc
(accessed October 10, 2008), paras. 110, 113.

[66]
Briefing paper from the National Immigrant Justice Center to the UN special
rapporteur on the human rights of migrants, “The Situation of Immigrant
Women Detained in the United States,” April 16, 2007, http://www.immigrantjustice.org/component/option,com_docman/Itemid,0/task,doc_download/gid,48/
(accessed October 10, 2008).

[68]
University of Arizona Southwest Institute for Research on Women, “Unseen
Prisoners: A Report on Women in Immigration Detention Facilities in
Arizona,” January 2009, http://sirow.arizona.edu/files/UnseenPrisoners.pdf
(accessed February 25, 2009).

[69]
For example, officials at the South Texas Detention Complex said that the
longest wait time for sick call was three days. Human Rights Watch interview
with Jay Sparks, ICE officer-in-charge, South Texas Detention Complex,
Pearsall, Texas, April 21, 2008. In contrast, one woman who was detained there
told us she had waited 10 or 11 days to see a doctor regarding painful
urination.

[82]
Human Rights Watch interview with Ashley J., Arizona, May 2008. As noted above,
individuals in ICE custody are held pending the resolution of their immigration
case, which is an administrative, not a criminal, matter.

[94]
UN Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted
December 18, 1982, G.A. Res. 37/194, http://www.un.org/documents/ga/res/37/a37r194.htm
(accessed October 10, 2008), principle 1.

[118]
See HRC, “Consideration of Reports Submitted by States Parties under
Article 40 of the Covenant, Conclusions and Recommendations of the Human Rights
Committee, United States of America,” CCPR/C/USA/CO/3/Rev.1, December 18,
2006,

[135]ICE Detention Standard: Detainee Transfer,
June 16, 2004, pp. 6-7. The new ICE medical standard requires that the medical
provider ensure that all relevant medical records accompany an individual who
is transferred or released. ICE/DRO Detention Standard: Medical Care, December
2, 2008, p. 19. However, the new ICE transfer standard differentiates transfers
to facilities not operated by DIHS (state and county jails and some contract
detention facilities) from those to facilities within the DIHS system, stating
that a transfer summary will accompany an individual transferred to facilities
not operated by DIHS , while a transfer summary and “the official health
records” will accompany an individual transferred within the DIHS system.
ICE/DRO Detention Standard: Transfer of Detainees, December 2, 2008, http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf
(accessed February 23, 2009), pp. 7-8.

[139]As noted in footnote 135 above, the new ICE medical standard requires that the medical provider ensure that all
relevant medical records accompany an individual who is transferred or
released. However, the standard also indicates that these records need only
include a transfer summary when the individual is moving to a non-DIHS
facility, including when the individual is “being transferred into or out
of ICE custody.” ICE/DRO Detention Standard: Medical Care, December 2,
2008, pp. 19-21.

[148]
It should be noted that the Government Accountability Office reported that it
encountered significant problems in trying to connect to the DHS OIG hotline
during their study of telephone access and other detention standards at
multiple detention facilities in 2007. GAO, “Alien Detention
Standards,” p. 11.

[160]
“The DIHS Medical Dental Detainee Covered Services Package primarily
provides health care services for emergency care … Other medical
conditions which the physician believes, if left untreated during the period of
ICE/BP custody, would cause deterioration of the detainee’s health or
uncontrolled suffering affecting his/her deportation status will be assessed
and evaluated for care.” DIHS Covered Services Package, 2005, p.1. As
noted in the summary, some officials have argued this language is broadly
interpreted, but other official statements and accounts of the policy in
practice indicate that this policy does significantly limit the scope of care.

[161]
“Scheduled, non-emergency services are usually not a covered benefit. Requests
will be reviewed on a case by case basis.” DIHS Covered Services Package,
2005, p. 26.

[166]
The requirement that women must generally spend a year in custody before
receiving a Pap smear screening is reflected in the Covered Services Package as
well as the DIHS Policies and Procedures Manual, which provides instructions
for staff at DIHS-operated facilities regarding how to approach specific health
issues. DIHS Covered Services Package, 2005, p. 26; Division of Immigration
Health Services, ICE, “DIHS Policies and Procedures Manual,”
unpublished document provided by ICE to Human Rights Watch on January 5, 2009,
sec. 8.2.4.

[167]According to the DIHS Policies and Procedures
Manual, DIHS staff shall perform a Pap smear as part of the initial screening
if medically indicated. The manual states that “Indications can be based
on the detainee's past history, family history, current medical conditions, or
reported lifestyle. Local operating procedures provide specific indications for
performing pelvic examination.” DIHS Policies and Procedures Manual, sec.
8.2.4.

[169]
This approach has proven feasible at the New York City jail on Rikers Island
where it is standard practice. See Homer D. Venters, M.D., Testimony before the
House Judiciary Committee’s Subcommittee on Immigration, June 4, 2008, p.
6.

[180]
Women are advised to use a back-up method of contraception for the first seven
days when beginning hormonal contraception if it is not begun on the first day
of their monthly menstruation. See e.g. Association of Reproductive Health
Professionals, “Administration of Hormonal Contraceptive Drugs,” December
2003, http://www.arhp.org/publications-and-resources/quick-reference-guide-for-clinicians/delsys
(accessed October 6, 2008).

[191]
United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard
Minimum Rules), adopted by the First United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved
by the Economic and Social Council by its resolution 663 C (XXIV) of July 31,
1957, and 2076 (LXII) of May 13, 1977, para. 15.

[213]
Options counseling refers to unbiased and medically accurate information
provided by a healthcare provider to a pregnant woman regarding her options for
continuing the pregnancy toward parenting or adoption, or terminating the
pregnancy.

[220]
“The law requires the detention of: criminal aliens; national security
risks; asylum seekers, without proper documentation, until they can demonstrate
a ‘credible fear of persecution’; arriving aliens subject to
expedited removal …; arriving aliens who appear inadmissible for other
than document related reasons; and persons under final orders of removal who
have committed aggravated felonies, are terrorist aliens, or have been
illegally present in the country.” Alison Siskin, Congressional Research
Service (CRS), “Immigration-Related Detention: Current Legislative
Issues,” April 28, 2004, http://www.fas.org/irp/crs/RL32369.pdf (accessed
January 20, 2009), p. 7.

[221]
Memorandum from Julie L. Myers, assistant secretary, ICE, to all field office
directors and all special agents in charge, ICE, November 7, 2007.

[230]The vulnerability of migrant women to violence
is well documented. See, e.g., UN Commission on Human Rights, Report of the
special rapporteur on violence against women, Radhika Coomaraswamy, Report on
trafficking in women, women’s migration and violence against women, E/CN.4/2000/68,
February 29, 2000, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/e29d45a105cd8143802568be0051fcfb/$FILE/G0011334.pdf
(accessed November 10, 2008).

[261]International
Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16,
1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.
A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12(1).
While the Covenant recognizes that developing countries are under a duty of
“progressive realization” of the right, this is not true for
developed countries, such as the United States, which are responsible for
ensuring the Covenant rights in full.

[263]
International Covenant on Civil and Political Rights (ICCPR), adopted December
16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by
the United States on June 8, 1992, art. 10. The Convention against Torture
obligates governments to take measures to prevent acts of degrading treatment
committed by or with the consent or acquiescence of a public official, with
particular attention to preventing such acts in the context of detention.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention against Torture), adopted December 10, 1984, G.A. res.
39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984),
entered into force June 26, 1987, ratified by the United States on October 21,
1994, art. 10, 11, 16(1).

[264]
UN Committee on Economic, Social and Cultural Rights (CESCR),
“Substantive Issues Arising in the Implementation of the International
Covenant on Economic, Social and Cultural Rights,” General Comment No.
14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4
(2000),
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument
(accessed October 10, 2008), para. 12.

[282]
HRC, “Consideration of Reports Submitted by States Parties under Article
40 of the Covenant, Conclusions and Recommendations of the Human Rights
Committee, United States of America,” CCPR/C/USA/CO/3/Rev.1, December 18,
2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenElement
(accessed October 10, 2008), para. 33.

[285]See UN Principles
of Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 18,
1982, G.A. Res. 37/194, principle. 1.

[286]
Some have argued that states may in fact have an elevated responsibility to
ensure medical care for individuals in detention based upon the custodial
relationship the state assumes when it deprives them of their liberty and their
options to provide for their own health care.The duty to ensure a
higher level of care for detained persons than that available in the community
may apply with particular force to conditions created or exacerbated by
detention conditions, such as mental health concerns. See Rick Lines,
“From equivalence of standards to equivalence of objectives: the
entitlement of prisoners to standards of health higher than those outside
prisons,“ International Journal of Prisoner Health, vol. 2 (2006),
p. 269.

[296]Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) (holding that elective,
nontherapeutic abortion is not a serious medical need under the eighth
amendment, but banning transportation for prisoners seeking abortions constituted
an unreasonable restriction on the fourteenth amendment right to seek an
abortion). See also Doe v. Arpaio, 150 P.3d 1258 (Ariz. 2007) (cert denied,
128 S.Ct. 1704, March 24, 2008) (holding that requiring court order for
transportation to abortion procedure was impermissible because it constrained
the incarcerated woman’s constitutional right to terminate her pregnancy
without a reasonable connection to a legitimate penological interest). But see Victoria
W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004) (finding the
requirement of a court order was reasonable where it was required for all
elective procedures and the asserted state interest was inmate security and
avoidance of liability).

[298]Women Prisoners of District of Columbia Dept. of Corrections v. District of
Columbia, 877 F.Supp. at 667-68 . On appeal, the court’s
determination with regard to obstetrical and gynecological care was vacated on
jurisdictional grounds. Women Prisoners of District of Columbia Dept. of
Corrections v. District of Columbia, 93 F.3d 910 (DC Cir. 1996).